Title IX, Due Process, Standards of Proof, and…what was the question again? (Education is Power, Part II)

by | Sep 12, 2017 | 0 comments


by Stephanie Krehbiel

(Read Part One of this series here.)

There’s one question I hear again and again when I’m talking to people about Title IX and sexual violence: Why are schools involved in this at all? Sexual assault is a crime, so why not leave it solely in the hands of the police?

I never know how to respond to that specific question without launching into the much broader question that is at the heart of my answer. Which is the following: Who do you believe deserves to get an education? And what do you believe that we, as a society, should be doing to make that happen?

So in service to my larger question, here’s the short version of an answer to my opening one: The purpose of Title IX is to ensure equal opportunity access to education. The presence of sexual violence in the lives of students is an impediment to that access. Title IX proceedings do not serve the same purpose as criminal courts. A verdict in a Title IX hearing cannot create a criminal record, or send a person to jail. A criminal verdict in the courts cannot take the place of measures that are designed to protect the civil rights of students.

And here’s an addendum to the short answer: The accuser in a Title IX hearing can also pursue a criminal case, or not. The complexities of concurrent Title IX and criminal investigations are many, but again, the purpose of Title IX is not to replace the criminal justice system.

Now for the longer answer, and eventually, the bigger question.

The false notion that Title IX hearings are somehow equivalent to criminal court proceedings is clouding the public debate about how to enforce Title IX at the federal level. Furthermore, this conflation has helped Trump-appointed Department of Education (DOE) officials to propagate the idea their Obama-era predecessors were engaging in systemic intimidation of college officials and promoting violations of due process, and to suggest that this happened to the overwhelming detriment of students who are accused of sexual assault.

Much of this alleged federal overreach is attributed to the enforcement of the guidance in the 2011 “Dear Colleague” letter (see part 1 of this series for a more detailed description of that letter). Last Thursday, at a speech at George Mason University, DOE Secretary Betsy DeVos announced her intention to rescind the Obama-era guidance, proclaiming the current system to be “failed,” and claiming that the Obama Administration “weaponized” the Department of Education against schools. In so doing, she took specific aim at the “preponderance of evidence” standard used in Title IX hearings, suggesting that the standard unfairly favors accusers over the accused. (Here’s a quick primer on legal standards of proof.)

Into Account’s co-founder, Jennifer (Jay) Yoder, was part of an Office of Civil Rights complaint against The Ohio State University in the early 2000s, a complaint that successfully shifted the university’s Title IX process to the “preponderance of evidence” standard. Jay’s case was one of a series of similar high-profile university cases that led to the DOE’s increased attention to evidence standards. S. Daniel Carter, a campus security expert who advocated for Jay in her Ohio State case and consulted with the Obama DOE on the 2011 guidelines, points out that the “preponderance” standard has been required by the Office of Civil Rights for decades. The Obama administration did not impose the standard on Title IX sexual violence hearings, but rather stepped up enforcement after it became increasingly clear that many schools were using a standard more appropriate to criminal trials.

Why is the “preponderance” standard more appropriate in Title IX hearings? Carter puts it this way:

By its nature, a finding by more than 50% of the evidence, this is the standard that is the closest possible to treating the accuser and accused equally, and has long been upheld by courts that have evaluated the due process protections of educational conduct proceedings which aren’t criminal proceedings. It has also long been the industry standard for student conduct cases.

Likewise, Laura Dunn, director of the D.C. legal nonprofit Survjustice, also argued for the preponderance standard in an August 3 New York Times editorial, co-written with Missoula author Jon Krakauer. Dunn and Krakauer reminded readers that the newly-maligned preponderance standard is the same standard that accused students receive when they appeal Title IX rulings in civil courts:

“Preponderance of evidence” is the burden of proof used in almost all civil lawsuits, even those seeking compensation after violent crimes. Indeed, it’s the standard used in civil courts when male students expelled for sexual misconduct sue their schools under Title IX, alleging reverse gender discrimination. It would violate the principle of fairness at the heart of Title IX to allow accused men to win discrimination claims using the preponderance standard but require their accusers (who are mostly female) to prove they were victimized under a more stringent standard.

While there are certainly legitimate discussions to be had about the content of federal regulations and how best to enforce them, it’s almost impossible to have those discussions when the real issues at hand are covered in a haze of misinformation and, on occasion, lies.

Another case in point: Candace Jackson, the Acting Secretary of the DOE’s Office of Civil Rights, was quoted in the New York Times on July 12 as saying, “The accusations — 90 percent of them — fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.” Jackson later apologized for what she characterized as her “flippant” comments.

The backdrop to Jackson’s statement is the long-held cultural notion that women, as a gender, are intrinsically prone to lying about sexual assault, and that we do so specifically to exact retaliation on men who we regret having sex with or otherwise dislike. In the time that I’ve spent working specifically on sexualized violence in religious organizations, I’ve found that this idea is particularly persistent with some Christians. The argument usually follows the same general shape:

  1. Real sexual assault is horrible, of course, and we should all be against it. (For those who recall, we might also call it legitimate rape.)
  2. Because real sexual assault is so horrible, we must not be distracted by all of these lying and vengeful women who are making up stories about sexual assault because they don’t want to take responsibility for their poor decisions.
  3. These measures that you are suggesting for preventing sexual assault must not be implemented, because they will make it easier for women to lie and ruin the lives of innocent men.

This argument is remarkably resistant to the steady stream of evidence on the rarity of false accusations (and the consistent traits present in the false accusations that do happen), the statistics on the frequency of sexual assault, and the low reporting rates for rape and sexual abuse.

A good portion of that resistance comes, I think, from deep-seated beliefs about who has the right to control access to their own body. At its core, the agenda of recently visible “men’s rights” organizations is belief in the right to dominance: certain kinds of men (many of them the aspirational descendants of slaveholders and colonizers) are entitled to sexual access to certain kinds of bodies (female, queer, trans, descended from enslaved and/or colonized peoples). By this logic, rape is simultaneously a thing that some people deserve as punishment (witness the phenomenon of retaliatory online rape threats), and a thing that doesn’t really exist, because some bodies are asking for it, regardless of what they say they want, or of the silences forced upon them. Some bodies are property. The more owned you are, the less right you have to not live under the continual threat of rape.

Yes, it’s sick. It’s old–as old as Western civilization. And unfortunately, thanks in large part to the current leadership at the DOE, groups that are mired in this ethos are being treated as legitimate advocates for due process in Title IX sexual assault hearings. Their presence in Betsy DeVos’s Title IX deliberations has aided in the resurgent media narrative that the Obama-era increase in campus sexual assault reports has created an epidemic of false accusations, that the preponderance standard enables lying women, and that schools are unjustly destroying the lives of scores of innocent young men.

In no way do I wish to dismiss the significant damage that can be done in the life of a person who is falsely accused. As rare as these occurrences are, they’re devastating when they happen. But by every rigorous measure out there, the problem of sexual violence is far, far greater than the problem of false accusations, and the damage done to the lives of sexual violence survivors is impossible to quantify when reporting rates are as low as they remain. Basing federal policy on a misogynist myth is the worst form of ideological governance.

Title IX requirements are not draconian. In fact, they were written quite intentionally to provide schools with significant latitude to respond to the cultural and educational dynamics within their own communities. Notably, Title IX is the legislative product of an era of government that was far less aggressively partisan than our current one. It passed through Congress with broad, bipartisan support; it was signed into law by a Republican president. DeVos is framing her critique of Title IX as a response to perceived overreach by the Obama administration, but her actions are consistent with what many educators see as her larger project: a multi-pronged, political attack against the legislative and judicial precedents of the past fifty years, on the very notion that the federal government should have anything to do with guaranteeing universal access to education.

The civil rights protections guaranteed by Title IX require the very resources that are currently under attack in Trump’s DOE: Funding for public education. Systemic attentiveness to educational disparities, and evidence-based responses. Fully staffed federal agencies, with enough personnel to provide necessary resources and to respond to needs and complaints from students and from schools. Title IX needs all of those things in order to work the way it is meant to work.

This isn’t about schools doing the work of law enforcement, or inappropriate standards of evidence, or women with regrets, or alcohol, or ruined men. This is about who we believe deserves to get an education, and how we’re going to make sure that they get it. Those are the questions we have to answer, together.


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