Changes to Title IX Enforcement Are on the Horizon

Posted on September 14, 2017 by Laura E. Laughlin

The more I let the commentary of Secretary of Education Betsy DeVos sink in from her speech last week regarding the changes to current Title IX enforcement, the more concerned I become for the future of students in our country.

After her thirty minute speech was over, the way she plans to move forward is unclear, however, what is clear is that there will be changes…big changes.  In the last few months, Secretary DeVos has been meeting with different sides concerning sexual assault and harassment, especially those on college campuses.  However, there shouldn’t be “sides” to this issue at all.  Sexual assault and harassment is wrong, always.

While I am glad that she took the time to meet with advocates of victims and survivors, advocates for the accused, those who have survived sexual assault, those who have been accused of sexual assault, and school administrations, I am concerned that the outcome may be too focused on the protection of schools and making sure that the accused are not inconvenienced rather than give all parties equal rights, as Title IX intended.

Secretary DeVos spoke about a 2011 Dear Colleague Letter, What’s That?

In 2011, the Office of Civil Rights issued a Dear Colleague Letter that included guidelines that instructed schools what they must do when it comes to sexual assault or harassment and how to define it.  This was a great step forward in attempting to put a stop to the days where survivors of sexual assault would be silenced or brushed under the rug due to fear of bad publicity, losing a star athlete, or some other stigma.  Failure to abide by the guidelines could potentially allow school to lose its federal funding.

Prior to the 2011 Dear Colleague letter, it was not uncommon for a survivor of sexual assault or harassment, when having the courage to report it to their school, to wait months or even years to have any sort of investigation, support, or justice from their school.  Many times, schools would say that they did not want to interfere with the police investigation (if there was one) and would wait for that to be completely over before beginning any investigation. Meanwhile, the victim would be forced to remain in classes or dormitories with their abuser, would fear running into them at the library or cafeteria, and could well see their grades and life suffer tremendously.

The 2011 Letter was seen as a huge step forward for survivors.  The goal of the guidelines was not to hurt the accused or strip of them of their right to due process, but to ensure that the victims were treated fairly and received equal protections that the accused had already been receiving.  Check out my prior blog on students’ rights under Title IX based on the 2011 Dear Colleague Letter.

What Will Happen Next According to Secretary DeVos?

Although no one is entirely sure what Secretary DeVos is planning specifically, it seems as though the letter and guidelines may be thrown in the trash.  DeVos specifically said, “The era of rule by letter is over.”  She also said that she’d be open to “appropriate accommodations that don’t infringe on the rights of others” and that don’t “punish the accused before a fair decision has been rendered.”  Sure, everyone would want that too, but that’s exactly what the Dear Colleague Letter intended that she is now talking about eliminating.

In her speech, the Secretary also referred to the current adjudications, where evidence is heard and a decision is made based on a preponderance of the evidence, or more likely than not standard, as “kangaroo courts.”

Her tone toward the current system was pretty insulting.  Are adjudications perfect in every scenario?  No.  Yet making that antagonistic comment in calling the adjudications “kangaroo courts” is a slap in the face to every survivor who received a rightful adjudication that gave him or her some justice, some sense of fighting back against his or her abuser.

Do I think that schools should receive additional training by the Office of Civil Rights in order to apply Title IX more consistently across schools no matter where in the United States they are located?  Absolutely.  At this point, no one can be sure exactly where Title IX protections are headed under this administration and Secretary DeVos except to know that they’re going to change.

She said that there will be a “comment period” where members of the public can voice their opinion on what should be done in terms of Title IX enforcement at publicly-funded schools across the nation.  I encourage you to speak up.

For so long, survivors were silenced, ridiculed, bullied, and doubted in favor of keeping up an image or a money-making sports program.  Since 2011, there was finally a turn in the way campus assaults were handled, a consistent way of doing so, with fairness to both sides and an end in sight once the process was started.

The uncertainty left by Secretary DeVos discourages victims from coming forward, speaking out, and getting the justice they deserve.  I am hopeful that if enough of us come forward to speak out for equal rights for survivors, that when changes are made, they will enforce Title IX as it was intended and will be another positive step to help guarantee equal education for all and justice for survivors of sexual assault.