As you may have heard, Betsy DeVos released a speech on September 7th of this year addressing Title IX, and claimed that the current system isn’t working. Furthermore, she used several case studies that supported this claim, and addressed ways that these problems can be fixed. I have a lot of opinions about this, as I go to a school that has been a part of several Title IX claims; every semester I hear of a new story of a Title IX report through the Baylor media and my personal Baylor family. More often than not, these claims are not taken care of in a manner that respects the victim while maintaining the integrity of the legal system that ensures a fair trial. With this as a context, I thoroughly read the text version of the speech DeVos gave, as well as the full Title IX amendment, to develop an educated opinion on the matter. Here is what I have gathered:
Title IX: Our Current System
If you know what Title IX is and everything it covers, go ahead and scroll down to the next section. If not, keep reading.
According to the Department of Education, "Title IX of the Education Amendments of 1972 protects people from discrimination based on sex in education programs and activities that receive federal financial assistance." In short, it holds universities responsible for responding to sexual harassment and sexual violence. Under Title IX, discrimination against those who are blind or visually impaired are also prohibited.
The Title IX Resource Guide, a document provided to schools to help them establish their Title IX offices, states that "as part of their obligations under Title IX, all recipients of Federal financial assistance must designate at least one employee to coordinate their efforts to comply with and carry out their responsibilities under Title IX." Their role is vital, as they are the "unbiased advocate" for those reporting to Title IX; ideally, they are independent and report directly to the college or university president. As a Baylor student, I can attest that this member of the Baylor faculty holds a prominent place on our campus, whether they do an effective job or not, and the contact information is easily accessible by the student body.
Notably, the actual rule of law is extremely vague; however, the Department of Education has created several detailed documents explaining how the Title is interpreted and what it was intended to do. For purposes of what Betsy DeVos aims to change, I will primarily be referring to this document and this Title IX guide, both published by the Department of Education, that describe what schools are required to do under the Title IX provisions when addressing sex discrimination. Additionally, the Obama administration released a comprehensive "Dear Colleague" letter, which addresses more specific expectations that I will reference as well. This letter is important because DeVos specifically requests that we no longer "rule by letter," meaning we create more specific legal processes for Title IX rather than giving vague suggestions that cannot be enforced.
The Problems DeVos Addresses: Broad Definition of Sexual Assault
DeVos references one case in which a bystander witnessed what they believed to be sexual harassment, but those involved insisted that it was not. Furthermore, the male student that allegedly assaulted his girlfriend was expelled and dismissed from his football team, even though the girlfriend insisted on his innocence. Later, the woman stated that she "was stereotyped and was told [she] must be a 'battered' woman, and that made [her] feel demeaned and absurdly profiled." This case is a prime example of why DeVos would like to have a more stringent definition of sexual assault. On the other hand, we have all heard stories of women not being taken seriously because someone believed that their assault just "wasn’t bad enough;" with a more ridged definition of what can be applicable under Title IX, more women and men will be served justice.
A Potential Solution:
As DeVos states in her letter, she would like to rewrite the Title IX program with a “more precise… definition of sexual misconduct.” This brings more equity on both sides and, if the definition is well thought out and accurate, paves the way for a fairer judgment.
The problem with her solution:
In my opinion, DeVos gets very "political" with this problem. Though she deals with policy, she is not a politician and therefore her decisions should be based on what is smart, not what is Republican. Furthermore, her primary argument for wanting a more precise definition of sexual assault or sexual harassment is the idea that the current system "tramples speech rights." Though I believe that these rights deserve to be protected, the examples she cites assume that words spoken by professors in and outside the classroom are incapable of creating a hostile learning environment, when there have been several cases (some that I personally have heard of on my own campus) of professors or other academic leaders taking advantage of their leadership and using it to exploit students. While the examples she cited were valid, the definition she has in mind seems to widen the scope of “free speech” to topics that we all know are inappropriate in the classroom. If we can all accept that you shouldn't be allowed to say "bomb" in an airport, we can all attest that certain topics should be left out of professor-student discussion.
The Second Major Problem: Allowing Universities to play judge
This is problematic for several reasons, however DeVos first recalls an incident in which a woman’s rapist went free because he sued his university (and won) for denying him due process. Though I would not want to be the lawyer defending a guilty person, the legal system we have that guarantees due process, a fair trial, and innocence until proven guilty was created to ensure equity; while equity may not always prevail, universities do not have the right to take away these privileges from an individual, even a guilty one. From the opposite point of view, as we see from the suicide of a student at The University of Alabama, the potentially under-experienced and under-trained Title IX staff at universities have been known to show a strong bias against those filing Title IX claims. Whether they "know too much about the accused" as was the narrative in Alabama, or they just don’t think a woman’s argument is valid, administrations consistently deny women fair judgment within their rights.
A Potential Solution:
Take away a school’s power of jury and judge, and leave them to perform their core obligation under Title IX: "to ensure all students can pursue their education free of discrimination." This does NOT mean that students will be denied access to measures that help them receive justice. On the contrary, it means that when a case is filed, that the University has the authority to remove students from any potentially dangerous situation, which may include "making academic accommodations such as adjusting schedules, changing dorm assignments, and postponing papers or exams." However, universities need to let law enforcement know the problem and then allow them to do their job: determining who is guilty. As she states: "this doesn’t mean schools don’t have a role. They do. But we should also draw on medical professionals, counselors, clergy, and law enforcement for their expertise." More specifically, DeVos suggests a "notice and comment" process in which institutions will be advised by individuals from all realms of expertise from a body she refers to as a "Center." There, the university can draw upon the knowledge of well-trained professionals in a variety of areas, gaining access to resources universities typically don’t have in-house. From there, the Center facilitates criminal prosecutions and ensures that the process is taken care of legally and efficiently.
The Problem with her solution:
I love everything about this system except one thing: the opt-in aspect of the Center. By telling schools they can opt in or out of using expert resources for handling Title IX cases, they give the opportunity for universities to continue with the problematic systems that are already in effect. In turn, this Center will only serve Universities such as Baylor that are in the limelight for sexual assault so much, opting out would be a publicity disaster. Moreover, if they opt out, what is the alternative result?
So what can we gain from this information? First and foremost, we agree that the current Title IX system is failing everyone involved – it doesn’t work, and it encourages universities to push problems under the rug instead of legally addressing them. Secondly, we can attest that DeVos, though we may differ with her on some level, does not intend to rip apart the system in place, but rather to improve it for the betterment of everyone involved. I pray that the speech she gave will be a catalyst for change in this flawed system.