Rollback of Title IX and campus sexual assault protections moves to Congress
Against the backdrop of nearly daily revelations of workplace sexual harassment and sexual assault, the U.S. House of Representatives’ Education and the Workforce Committee this week finalized work on a bill that systematically undermines protections for survivors of campus sexual assault.
The Higher Education Act (HEA) — which spells out the federal role in higher education, including school accreditation and management of federal student loan programs — is up for reauthorization. Because the committee has jurisdiction over the Department of Education, it has included in the reauthorization bill provisions that are harmful to Title IX — the federal civil rights statute that addresses gender equity — at a time when the Department of Education has already significantly undermined the progress made on campus sexual assault during the Obama Administration.
Trump Administrations’ Actions on Campus Sexual Assault & Civil Rights
During the Obama Administration, the Department of Education issued several significant pieces of policy guidance to colleges and universities reminding them of their obligations under Title IX to respond promptly and equitably to allegations of sexual violence. Through a combination of the guidance and tougher enforcement, the number of schools under investigation for Title IX violations quadrupled from 55 to over 300 by the end of the administration. The number of forcible sex offenses reported to the Department between 2009 and 2014 rose from 3,264 to 6,016 per year.
The administration was also active on related fronts, including supporting the work of students on campus to provide training and encourage bystander intervention under the banner #ItsOnUs. Much of the work drawing attention to the epidemic of violence on campus was led by student groups like End Rape on Campus and Know Your IX, both of which were started in 2013. It was the work of these groups, chronicled in documentaries like The Hunting Ground, that planted the seeds that ultimately gave rise to the #MeToo movement.
Six years of steady progress was interrupted by Donald Trump’s appointment of Betsy DeVos as education secretary this year. DeVos has very little background in education, and has ties to organizations that had denounced the work being done to enforce Title IX as unfair to men and failing to provide due process to alleged perpetrators. In September, DeVos, claiming that Obama’s policies had “failed too many students,” rescinded the Obama-era guidance. Since then, working on campus sexual violence issues, while allegations involving workplace sexual harassment and violence erupt daily, has felt much like “the upside down” of Stranger Things. Within a month of DeVos’ statement, we were inundated with reports of men having sexually harassed or sexually assaulted teenage girls, women in the workplace, or in some instances, boys and men. Yet, we are still expected to believe that with respect to ensuring that sexual assault survivors can be safe on campus and seek accountability from perpetrators, the pendulum has swung too far.
The Obama-era guidance was replaced by interim standards that encourage the use of mediation, give institutions the option to eliminate appeals in sexual assault cases, and let schools determine which party can appeal (creating the possibility of survivors being denied the ability to appeal).
The new rules also allow schools to impose a higher standard of evidence in sexual assault cases than is currently used (“clear and convincing evidence” instead of “preponderance of the evidence”), which skews cases in favor of the accused.
The policy changes were based on a handful of anecdotal stories stemming from lawsuits by alleged perpetrators; these cases implicated not problems with federal policy, but faulty implementation of that policy by colleges and universities. University of California President (and former Secretary of Homeland Security) Janet Napolitano offered this assessment of DeVos’ justification: “She picked out a few outliers to condemn entire systems. That’s not a way to make good policy.” It is notable that, citing confusion, concern, or simply a determination to stay the course, many colleges and universities have declined to adopt the new policy.
The broadside against Title IX must be understood in the larger context of this administration’s assault against civil rights on all fronts. It began with withdrawing from the Gavin Grimm case, which involved the right of a young man in public school in southern Virginia to use the bathroom consistent with his gender identity. It has continued with switching sides on the issue of voting rights; ending programs designed to enhance police accountability; and in the education context, rescinding more than 70 pieces of guidance relating to the rights of special education students. It has also involved active efforts to impede the basic enforcement operations by offering buy-outs to staff of the Office of Civil Rights.
The PROSPER Act
The administration’s actions set the stage for further harm to be done by the HEA reauthorization, dubbed the PROSPER (Promoting Real Opportunity, Success and Prosperity through Education Reform) Act.
The PROSPER Act:
- gives colleges and universities leeway to choose whether they will adjudicate campus sexual violence cases under the preponderance of the evidence or the less fair clear and convincing standards. Not only was preponderance of the evidence the standard used by the Bush administration, it is the standard that is consistent with Title IX’s equity imperative, i.e., it holds the rights of both parties in equipoise rather than favoring the accused.
- permits schools to delay or suspend campus assault investigations or proceedings at the request of law enforcement or a prosecutor. This conflicts with the Title IX obligation that colleges and universities have to conduct independent inquiries. It could also permit law enforcement to unreasonably delay a campus inquiry, potentially affecting the availability of accommodations for the complainant and the institution’s ability to conduct a timely investigation.
- weakens the requirements for colleges and universities to disclose their crime statistics. As long as institutions are able to demonstrate a “good faith effort” in their crime report submissions, there would be no penalty for errors or omissions, which would remove any incentive they currently have for disclosing unfavorable data.
- moves away from the best practice of standardizing campus survevs and making their results public. Instead, the bill would impair the use of campus climate survey data for comparing the incidence of campus sexual assault across institutions. The bill would bar the secretary of education from using the survey results to compare higher education institutions, and make survey questions optional and responses confidential/non-public.
- urges higher education institutions to enter into memoranda of understanding with local law enforcement to facilitate the handling of sexual assault cases. This provision reflects an increasingly common, if incorrect, view that all campus sexual assault cases should be referred to local (non-campus) law enforcement. Title IX obligates all schools receiving federal funding to independently investigate and respond to allegations regarding sexual assault. Additionally, colleges and universities can provide victims with remedies — e.g., counseling and tuition refunds — that the criminal justice system cannot.
Citing a number of concerns, Education and the Workplace Committee members Susan Davis (D-CA) and Suzanne Bonamici (D-OR) proposed an amendment to strike all provisions in PROSPER relating to sexual assault. The amendment was voted down. Additionally, the National Alliance to End Sexual Violence — the umbrella organization of rape crisis lines and state sexual violence service providers — has issued a letter opposing the PROSPER Act.
On Wednesday, the committee voted the PROSPER Act out, clearing the way for it to be voted on by the full House. If it does get passed by the House, chances of passage will be steeper on the Senate side. Senator Lamar Alexander, who chairs the Senate Health, Education, Labor and Pensions Committee, is a former university president, and seems inclined toward working toward a bipartisan bill with ranking member Senator Patty Murray. However, it's important to remain vigilant with respect to PROSPER’s troubling campus sexual violence–related provisions, especially with the reauthorization of the Violence Against Women Act coming next year.
More articles by Category: Education, Gender-based violence
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