The Trump administration has proposed changes to Title IX law in favor of a new campus sexual assault policy slated to do more harm than good.
To notable effect, the past year of the #MeToo movement has spurred a nationwide reckoning with sexual misconduct. Yet, despite increased efforts to build a system against sexual assault and harassment, perpetrators continuously fail to be held responsible for their actions. Many are even able to retain their positions of power with little consequence— just look at Brett Kavanaugh or Donald Trump, men credibly accused of sexual assault, who continue to determine policies impacting us as students at a public university. This is especially troubling because the Trump administration has made it a priority to roll back protections on campus sexual assault by changing Title IX.
Passed as a followup to the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex, or national origin, Title IX is one of the Education Amendments of 1972 that prohibits gender discrimination in federally funded schools:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
While it’s a short law, Title IX covers all forms of gender-based discrimination — which includes sexual violence and sexual harassment — and can apply to anything from academics to athletics.
The Obama Administration undertook extensive efforts to enforce Title IX, releasing a Dear Colleague letter in 2011 that specifically defined Title IX standards. As long as a complainant made a report, it held universities responsible to investigate the case if the victim and/or respondent were affiliated with the university. It additionally proposed the ‘preponderance of evidence’ standard (51 percent “more likely than not” certainty that the accused is responsible) as the evidentiary standard institutions would impose when investigating adjudicating. And in the resolution process, mediation and cross-examination were prohibited, meaning that the accuser and the accused were not required to have any direct face-to-face interaction.
The Department of Education under President Trump has proposed detrimental changes to the Title IX policy. Education Secretary Betsy DeVos is withdrawing the Dear Colleague Letter because she believes the Obama-era Title IX policy favors the victim and denies due process to the accused.
One of the most significant changes will require each campus to choose its own evidentiary standard. Right now, the UC system uses the ‘preponderance of the evidence’ standard (51% “more likely than not” certainty that the accused is responsible) of Obama’s Dear Colleague letter, but DeVos favors other evidentiary standards, such as the ‘clear and convincing’ standard (100% “beyond reasonable doubt” certainty that the accused is responsible), that require higher standards of proof.
“Basically, [these other evidentiary standards] mean that the accused is innocent until proven guilty — which is very unfair for victims and places an undue burden on survivors for having to advocate for themselves and doesn’t give each testimony equal weight,” senior Annie Park, UC San Diego’s undergraduate representative on the Title IX Student Advisory Board, said. “That’s a big problem that a lot of victim’s rights testimonies have with the proposed guidances.”
In addition, universities will only be responsible for addressing on-campus incidents and cases that occur within the university programs.
“This very much narrows university jurisdiction over sexual violence and sexual harassment,” Park asserted. “There’s no accountability for universities addressing off-campus cases, which really narrows holding perpetrators responsible because so much happens off campus — at off-campus parties, apartments, etc.”
Again in contrast to the Obama-era guidelines, the Trump-era guidelines allow for cross-examination and mediation between the accuser and the accused. The law thus openly provides an opportunity for the use of intimidation tactics and for the possibility of further traumatizing the victim.
Most importantly, the Trump administration is narrowing the definition of sexual harassment:
- Obama administration’s definition: “unwelcome conduct of a sexual nature,” that includes “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”
- Trump administrations’ definition: “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.”
“How do you define something as offensive in an objective way?” Park asked, expressing outrage over the Trump administration’s definition. “It really makes no sense, this entire policy is just very contradictory of itself. This would mean that incidents of sexual harassment a victim might deem offensive would not be covered as sexual harassment by the law.”
Trump’s definition gives universities extra room to ignore certain cases that might not match this vague consideration of sexual harassment. This will increase hesitancy to report and make victims less likely to come forward.
In response to these policies, the Title IX Student Advisory Board wrote a letter of opposition to the Office of Management and Budget (OMB), which is currently reviewing the proposed regulations. Should the OMB accept the regulations, Trump would be next in line to approve it — Congressional approval is not required. But considering Trump’s attitude towards sexual harassment, it is highly likely that these Title IX changes will be implemented.
No matter what happens, however, the University of California plans to uphold a fair and equitable sexual harassment policy. While the legality of a public university circumventing certain aspects of federal law is questionable, President Janet Napolitano has asserted that the UC system will prioritize the rights of its students.
“In general, the UC system is fairly progressive on sexual violence/sexual harassment cases,” Park said. “With the decision to rescind the Dear Colleague letter, President Napolitano released a statement saying we’re not going to change the way we treat sexual violence/sexual harassment.”
Last January, after a federal investigation conducted by the U.S. Department of Education’s Office for Civil Rights (OCR) found UC Berkeley in violation of Title IX policies, the UC system created the Title IX Student Advisory Board. The systemwide Title IX office under Napolitano has since worked to revise the UC Policy on Sexual Violence and Sexual Harassment in order to ensure that Title IX is successfully followed.
Despite the positive implications of the university’s improved legal response to sexual assault, students still have a lot to learn when it comes to addressing harassment. Park believes the culture of science, technology, engineering, and math at UCSD generally causes students to put issues of social justice on the back burner whereas students at other universities might prioritize them.
“Students should be more informed not just about isolated cases, but also policy and federal policy,” Park said. “I think it’s important that students are familiar with the UC policy, with the adjudication model, with federal policies, and with the different offices we have on campuses. A lot of students aren’t aware that we have a Title IX office or a [Cognitive Assessment and Risk Evaluation] office, but I just hope that in the future there’s more awareness generated about Title IX and these policies.”
And although cultural attitudes towards sexual harassment have improved with the #MeToo movement and the increased social progressiveness of our time, sexual harassment, unfortunately, remains a stigmatized and misunderstood issue. Especially considering current media coverage, it’s important that victims aren’t reduced to their trauma, that these instances of assault should not define them.
“I wish students would understand that especially in the past few years sexual violence and sexual harassment has been really sensationalized,” Park said. “The Kavanaugh confirmation, the details of Ford’s testimony have been blasted out to everyone and it’s become sort of a media sensation. I think it’s important to understand that sexual violence and sexual harassment is a very real and personal issue and not just one of a media story or something to gossip about — it’s something that affects a lot of people’s lives in various ways.”
Image courtesy of Denise Nivens.