When I sketched out the shape of our Education is Power series, I envisioned a three-part release of informative articles that could help people understand what is at stake for sexual violence survivors in an attack on Title IX. That was back in July. I had it planned out so neatly. And then the news kept coming, and between keeping on top of the news, responding to an increase in communication from survivors, and answering lots of questions from concerned people in our communities, it was hard to know where to focus my Title IX-related energy.
Hilary, Jay, and I have had a lot of conversations in the past three months about our personal investments in what’s happening with Title IX. All three of us have had experiences with campus sexual assault or harassment. A previous installment of this series described the result of one of Jay’s experiences: a successful Office of Civil Rights complaint that, in 2004, changed the standard of evidence in Title IX hearings at The Ohio State University, from “clear and convincing” to “preponderance of the evidence.”
(Civil rights cases are generally tried on the preponderance standard, and Title IX is civil rights legislation. Using the “clear and convincing” standard effectively treats the complainants in sex-based discrimination claims as less credible than complainants in other civil rights-related cases; see part II of this series for more background on this.)
When Secretary of Education Betsy DeVos announced on September 22 that the ED was rescinding the guidance in the 2011 “Dear Colleague” letter, she took aim specifically at the preponderance standard. Her clear intent is to undo what a succession of survivors, advocates, and lawyers spent the early 2000s fighting to achieve: the uniform use of the preponderance standard in Title IX hearings.
The new guidelines give schools the option of choosing the “clear and convincing” standard. Again, this is the standard that the courts had already established, through years of precedent, to be too high to ensure the equal educational access guaranteed in the Higher Education Act.
I know that all this talk about standards of proof can make the eyes glaze over, particularly for those of us who aren’t lawyers. DeVos and her supporters have exploited that confusion. But the core issue at stake in this debate about evidentiary standards is whether people who claim to be sexually assaulted and/or harassed deserve a fair hearing, one that isn’t biased in favor of the person or persons they’re accusing. If we choose to believe that sexual violence claims are inherently lacking in credibility (and many people do believe this), we’re easier to sway towards a standard that puts a higher burden of proof on accusers than it does on the accused. But that isn’t consistent with what we know about sexual assault accusations, and it certainly isn’t how civil rights law is meant to be enforced.
Which is why we suspected, from the outset, that this whole mess would hit the courts before long. (And as of last week, it has, in a suit filed by the same civil rights lawyer who represented Jay in 2003-2004. I expect more such suits in the future.)
We decided to issue a moral challenge to the higher education administrators we know best: the ones who run Mennonite colleges, universities, and seminaries. We published an open letter to those administrators on October 6, in the denominational magazine of Mennonite Church USA (The Mennonite), asking them to publicly commit to maintaining the preponderance standard in their Title IX hearings. The Mennonite’s editor, Hannah Heinzekehr, seized on the opportunity to ask for responses from all the schools we addressed. You can read those responses here.
I interviewed Into Account Co-founder Jay Yoder about their Title IX experience in 2003-2004, and how they feel about that experience in light of what’s happening now. That interview, in Jay’s words, is below. (Content warning for general descriptions of sexual assault.)
Jay: For me personally, for Betsy DeVos to take back this guidance that was issued in 2011, as if the guidance issued in 2011 was new information that she could just take back–it was really offensive. For a long time, there has been movement of people bringing attention to sexual violence on college campuses. When I was at Goshen College, I had at least three friends who were sexually assaulted, off-campus and on-campus. They had difficulty reporting, because alcohol was involved in one way or another. Goshen had a longstanding practice of getting students in trouble for drinking alcohol when they reported sexual assault. So often the girl would get in trouble for drinking alcohol, and the guy wouldn’t get in trouble. So for reporting her rape, her reward is to be disciplined by the college. For decades, we’ve been working on–as more and more women attend college–and right now I think we’re at the point where more women are seeking higher ed than men–how do we integrate women into what was originally men’s educational opportunity? All of that is to say, there’s been a movement in place for a long time.
I participated in Take Back the Night at Goshen, which is an event bringing attention to sexual violence on college campuses. I led and put together a Take Back the Night movement for several years at Ohio State. Thousands of people attended those events. Then, way back then, in the early 2000s, some of us survivors were talking to each other, exchanging resources, trying to figure out how we could continue our college educations when the people who had raped us were at the same schools with us, oftentimes in the same programs as us. How could we get the education we needed to get when we were faced with our perpetrators, and/or their friends and enablers, or the professors who had enabled them, on a daily basis? When we were just trying to get our degree?
So there were two big cases when I was at Ohio State: mine, and another woman who I will call Jane Doe. Shout out to my friend Jane Doe. A student raped her, and he had been moved to her dorm because he had raped someone else in another dorm before hers. After that he was moved to off-campus student housing. So he had raped multiple people on campus, and was just being shifted around from one housing situation to another. You can see how that would be a Title IX violation, right? How are you having safe access to education when there’s a repeat rapist moving around from housing situation to housing situation? So she pursued a Clery Act complaint. She also sued the university for putting her in danger. I’m calling her Jane Doe because her information can’t be disclosed; part of her settlement was a non-disclosure agreement.
Almost right away when I transferred to Ohio State, one of the few people I knew there was this young Mennonite man who I went to high school with. I didn’t have the greatest high school experience. I was a young, queer person in a tiny, Mennonite-majority town. It’s not that he and I were close friends, but he was one of the only people I knew at Ohio State. He kept pushing alcohol on me one night. I kept trying to say no thank you, like a good Mennonite, but he kept pushing it into my hand, that kind of thing. And then he raped me. I didn’t know how to get home from the place where I was; he walked me home and raped me in my own apartment. It was a former hotel room, a very tiny room that I then continued to live in for the rest of the year.
So it was a really difficult experience. I had lived in this tiny little town, Archbold, and then I moved to Goshen–not much bigger. And then I went to Columbus, Ohio, and Ohio State, and a campus of 50,000. This young man was in my program, too. I was a music major at the time. It made life really complicated.
I got a rape kit, which is a terrible name for it–we can talk about that another time. And I went to the advocate–there was an advocate on staff at Ohio State. She listened to me and gave me my options, and I decided to both pursue a rape report to the police and go through the campus judicial system, so that I could go through my degree without having to be in multiple classes with this person.
So I went through the hearing. It was a really difficult process. They found him in violation of providing me with–at his count–sixteen alcoholic beverages over the course of the night. It was more than I had even counted, because I couldn’t remember. They did not find him in violation of the rules on sexual assault. They agreed that I had consumed at least portions of sixteen alcoholic beverages, and that I had then consented to sexual activity. That was pretty devastating to me. I struggled with, how are these people sleeping at night, what kind of training did they have and why isn’t this system working the way it’s supposed to work? And a lot of things were at play that we always talk about. Caring more about “ruining a young man’s future,” than the impact on the life of the person who was assaulted, that kind of thing.
Jane Doe, who had filed the Clery Act complaint, connected me to Daniel Carter, whose name you’ll see a lot in articles about what Betsy DeVos is doing to give rights to accused individuals that accusers do not have. He was at the Clery Center at the time. He’s been instrumental in writing legislation, he’s been in the campus safety movement for a long time, and he’s a really well-respected advocate. He connected me with Wendy Murphy, a civil rights attorney. She had recently helped students at Harvard file a complaint about the evidence standard, and she assisted me in filing a complaint about the evidence standard.
I remember talking to Wendy Murphy at one point in a stairwell of an OSU building between classes. She told me, “You’re legally allowed to do this, and they’re not legally allowed to retaliate against you, but I’ve seen it over and over. You could get kicked out. You’re putting your college education at stake. I just want you to know that, when you make this decision.”
It was important enough to me that no one else go through the pain that I went through. Because of the complaint that I filed, it was so much more likely that a Title IX panel would feel empowered to find someone in violation of the policy [on sexual assault], based on the preponderance of the evidence: it’s more likely that it happened than that it did not happen. Which is different from the “clear and convincing” standard, which is the one in between preponderance and the standard that we’re all familiar with from criminal courts, “beyond a reasonable doubt.”
It’s about education access and safety. It’s not a criminal hearing. Everyone who’s talking about it now doesn’t seem to understand that. This isn’t a criminal process that puts someone in jail; this is a process that makes sure that people who have survived violence have access to education, and are not forced to interact with their perpetrators constantly while trying to recover and go to college. So I made the choice to file the complaint. I got really involved in campus anti-rape activism, and sat on a panel to revise the code of conduct. We were ultimately successful in our civil rights complaint with the OCR, and OSU agreed to change the standard of evidence.
Again, this was 2003, and until 2004. We’re under George W. Bush. This is not an aggressive “using identity politics and civil rights to change everything for men” situation, this is a totally standard, normal decision, one that the Office of Civil Rights continued to make consistently, from that Harvard decision, to mine; survivors across the country kept filing these complaints, and one by one schools were changing their standards of evidence to come into compliance with federal law. And then the Office of Civil Rights issues this guidance in 2011 that says, essentially, “hey, reminder: rather than doing this one by one, let’s just tell all of you at once: time to change your standard of evidence to preponderance of the evidence.”
I don’t think I can express–I put my my college education at risk, I struggled through literal blood, sweat, tears, pain, chaos; I took a semester off of classes; this took up all of my time.
It was a really important time in my life, and I feel that the best thing that came out of it–I knew that survivors at Ohio State were better off because of what I sacrificed. And to watch her take it away, I can’t express how painful and infuriating it is. Having not ever achieved any justice in my personal case, I get asked all the time, was it worth it? Would I do it again? It’s been one of my personal rocks, that I did everything that I could do. I may not have gotten justice for myself, but I fought back as much as I could fight back and I made things better for the people after me. And with a stroke of her pen, she can just take it away. She has no idea what she’s doing.
To pretend that it’s somehow undoing “Obama activism” is just ignoring history. That’s not what happened. The Office of Civil Rights under George W. Bush repeatedly held up the same standard. To say that now schools can do whatever they want, it’s turning back the clock to before schools understood what was expected of them under federal law. And changing the expectations at the same time.
So yeah, it’s really personally painful for me. It’s really hard to watch. And I know it is for all the survivors and advocates who have worked so hard. We’re the ones who enforced those federal expectations. Things like the Clery Act, the Campus SAVE Act, and Title IX, they’re passed, they’re written into law, and they’re not funded. It’s not like they fund a huge staff of people that then scatter all over the nation and make sure that everyone’s in compliance. It’s a backwards enforcing model, where schools do the wrong thing, and then survivors and advocates step up and say, no, you’re not following the law. And then they ask someone to come in and investigate.
So the people who have been enforcing this are survivors and advocates, who alert investigators to schools that aren’t following the guidelines. DeVos just undid decades of work, with no understanding of the process.