The Problems, The Truth: Betsy DeVos’s Remarks on Title IX and Campus Sexual Assault

Last week, Secretary of Education Betsy DeVos addressed a crowd at George Mason University about Title IX. Although no actual policy changes were announced during her speech, DeVos announced that “the era of rule by letter is over”, referring to the Dear Colleague Letter of 2011, a document released by the Department of Education’s Office for Civil Rights. The letter provides guidance to institutions of education regarding sexual assault investigations undertaken pursuant to Title IX, a federal civil rights law which protects students from gender discrimination. Secretary DeVos’ speech perpetuated falsehoods about sexual violence and the role of Title IX. The Denver Sexual Assault Interagency Council’s Title IX Working Group has pulled out some key pieces of her speech to clarify inaccuracies and misrepresentations of fact.


Watch her full speech here (after 20:00).


Problem: Education Secretary Betsy DeVos wants us to believe that Title IX investigations are inferior and less equitable than criminal investigations, and that the current Title IX guidance should be replaced.
Truth: The current Title IX guidance requires thorough, prompt, and equitable investigations of complaints of sexual misconduct. Students attending a school know they are expected to adhere to student conduct policies and Civil Rights, and that alleged violations will be resolved through the investigative processes articulated in their school’s policies and procedures.
Title IX adjudication processes are not, and should not be, “trial by judge and jury.” The Title IX guidance affirmatively requires equitable treatment of both the reporting and responding parties. Secretary DeVos cited several cases in which parties “may or may not…” have received equitable treatment as required by the Title IX guidance. If parties are not treated equally, for example by being provided the opportunity to have an advisor or submit or access information related to the investigation, the institution is failing to comply with Title IX. The isolated anecdotes shared by Secretary DeVos are evidence that the current Title IX guidance has not been followed by some institutions; the anecdotes are not evidence that the Title IX guidance creates an inequitable process. The solution is for the Office of Civil Rights (OCR) to enforce the existing guidance when it is not followed, rather than throwing it away.

Problem: “And now this campus official – who may or may not have any legal training in adjudicating sexual misconduct – is expected to render a judgment.”
Truth: The Violence Against Women Act requires annual training for all staff handling sexual violence on campus. Enforcement has increased availability and implementation of training. Stronger enforcement of training requirements already in place would further address this problem.
In contrast, judges in the criminal justice system are assigned to sexual assault cases without being specialists on the issue. Juries are made up of the general public. Secretary DeVos’s concern means we need increased prevention, education, and training for all members of our communities (potential jurors) and campus Title IX staff.

Problem: “Some call these proceedings ‘kangaroo courts.’”*
Truth: Campus processes are not courts at all, and for good reason: a student’s Civil Rights are protected regardless of whether the student experiencing the violation chooses to report to law enforcement. “Some” refers specifically to advocacy groups who actively work against accountability measures that treat sexual assault accusations with the seriousness they deserve in student conduct hearings.
The Violence Against Women Act prevents discouragement from reporting to law enforcement. If a survivor chooses to report to both their school’s Title IX coordinator and law enforcement, Title IX further requires delay of the Title IX investigation if requested by law enforcement.
*See comparison chart for criminal trials and Title IX hearings at the end.

Problem: “The current approach isn’t working.”
Truth: Since the enforcement guidance was issued in 2011, Title IX professionals and institutions have moved forward with the development of best practices for equitable treatment of reporting and responding parties, specialized training for staff, reasonable accommodations that prioritize access to education for both parties during the investigation, and measures to prevent future sexual violence on campus. Secretary DeVos again offered selected anecdotes of those who feel the current process does not work, but omitted data or anecdotes on the volume of cases in which the process has worked.

Problem: Secretary DeVos pointed out the real concern of suicidal thoughts among students involved in Title IX investigations, but only told the story of a male who was accused. She failed to mention the disproportionate impact on survivors.
Truth: 33% of women who are raped contemplate suicide. 13% of women who are raped attempt suicide.[1] 1 in 5 college women experience sexual assault.[2] On a campus of 5,000 women, as many as 1,000 women may be struggling with the trauma, and as many as 333 may be trying to complete their educations while also contemplating suicide. The Title IX guidance ensures that institutions make it possible for survivors to stay in school by providing access to confidential services, and reasonable housing and academic accommodations.

Problem: “We aren’t just talking about faceless ‘cases.’”
Truth: Research has repeatedly shown that only 2% to 8% of rape accusations are false.[3] Secretary DeVos painted a false picture, indicating that the numbers of survivors and falsely accused parties is comparable. This exploits the misconception that false accusations are common. Survivors are made faceless by DeVos’ misrepresentation and omission of facts in favor of falsehood-justifying anecdotes.

Problem: “Not one more survivor will be silenced.”
Truth: The Title IX guidance provides survivors with a path for reporting sexual misconduct suffered on campus. Survivors will be silenced if Secretary Devos limits transparency in sexual misconduct policies and processes or limits access to reasonable accommodations and confidential services that allow survivors to feel safe and stay in school. Survivors will be silenced if there is no enforcement of best practices requiring equitable treatment of all parties, if there is no requirement for education around sexual misconduct on campus, and if there is a return to antiquated policies and practices rooted in myths about sexual violence. These are the same factors that created a pervasive culture of silence for survivors before the implementation of the Title IX guidance.

Problem: “Open debate is welcomed and encouraged.”
Truth: A true open debate would intentionally provide enough time for all voices to be included. The Office of the Secretary, Department of Education, opened a public comment period from June 22, 2017 through August 21, 2017, well before Secretary DeVos’ September 7 speech about the direction she intends to take Title IX. The public comment period was extended for 30 days, until September 20, 2017, leaving just 12 days for comment after her speech.

Problem: Secretary DeVos wants to replace the Title IX guidance that ensures Civil Rights in access to education based on gender – the guidance that specifically addresses sexual harassment and violence. She stated, “we will seek public feedback and combine institutional knowledge, professional expertise, and the experiences of students to replace the current approach with a workable, effective and fair system.”
Truth: Your public comments are urgently needed by September 20, 2017! Secretary DeVos left the public only days to respond and tell her how we feel, so let’s act fast. Submit your comment to tell her:

“Title IX guidance has established the foundation of a workable, effective and fair system. Implementation takes time, and there is still work to be done. The solution is to keep, and enforce, Title IX guidance, while continuing to improve upon it by: Supporting schools in development of equitable and transparent procedures; increasing participation in high-quality training; and adopting best-practices in student conduct policies, processes, prevention, and survivor care.”


Comparison Chart

Criminal Trial for Sexual Assault

Title IX Hearing for Sexual Assault
Parties have a right to counsel, with the right to view all evidence, and a right to be heard. Parties have a right to counsel, with the right to view all evidence, and a right to be heard.
Proceedings are supervised by a judge who is not required to have training or experience in investigating sexual assault. Proceedings are supervised by a Title IX Coordinator with required training and experience in investigating sexual assault.
Evidence is assessed by 6-12 randomly selected citizens with no required training, education, or experience. Evidence is assessed by Investigators with advanced degrees, required training and specific experience in investigating sexual assault.
Investigation and prosecution often last years. Proceedings are to be resolved within 60 days.
If found guilty, the accused can go to prison. If found responsible, the accused can be removed from campus.
If found guilty, criminal record is public.If found innocent, records of the criminal charges and the trial are also public. Regardless of outcome, disclosure of disciplinary records to anyone without the student’s permission is prohibited by federal law.
If found guilty, the accused has to register as a sex offender. If found responsible, the accused does not have to register as a sex offender.
If procedural errors occur, parties can appeal to one court as a matter of right, with discretionary appeals thereafter. If procedural errors occur, parties have the right to appeal within the university, to the Department of Education, and/or to sue in civil court.
Criminal justice decision to convict a citizen for a crime they committed.

 

Policy decision to hold students accountable to expectations they have agreed to (as is true for other student conduct violations such as selling drugs, plagiarism, etc.).

What is the SAIC Title IX Working Group in Denver?
Coordinated community response to sexual assault has a long standing history in the City and County of Denver. In 1995, the Sexual Assault Interagency Council (SAIC) was founded to ensure a consistent, collaborative and victim-centered response to the crime in Denver. Today, SAIC includes multidisciplinary representatives from all agencies in the City and County of Denver who are stakeholders in sexual assault response. In the spring of 2014, key campus and law enforcement representatives identified a need for increased coordination regarding co-occurring Title IX and criminal investigations, thus the Title IX Working Group was born.

For more information, contact the SAIC Director at director@denversaic.org.

This letter represents the views of the SAIC Title IX Working Group, not necessarily the views of its individual members.


References

[1] DG Kilpatrick, CN Edumuds, AK Seymour. Rape in America: A Report to the Nation. Arlington, VA: National Victim Center and Medical University of South Carolina (1992).

[2] Krebs, C. P., Lindquist, C., Warner, T., Fisher, B., & Martin, S. (2007). The campus sexual assault (CSA) study: Final report. Retrieved from the National Criminal Justice Reference Service: http://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf

[3] Lisak, D., Gardinier, L., Nicksa, S. C., & Cote, A. M. (2010). False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases. Violence Against Women , 16(12), 1318–1334.