Betsy DeVos is pushing for inclusivity in Title IX
In July, the Department of Education proposed plans to amend current campus sexual assault policies and revise previous laws from the administration of President Barack Obama. Specifically, Secretary of Education Betsy DeVos is considering overturning the “preponderance of evidence” provision of the Obama administration, which effectively lowers the standard of evidence for individuals who report sexual assault.
As a result of this provision, the Department of Education’s Office of Civil Rights required schools receiving federal funding to lower the standard of evidence for survivors. This decision acknowledged that the circumstances survivors emerge from can render it difficult to achieve the burden of proof necessary in other criminal proceedings. While proponents argue that the “preponderance of evidence” standard is useful in campus sexual assault cases where victims may face disbelief or blame upon reporting, critics of these guidelines say that this standard undermines the rights of the accused. This is especially evident when schools may be financially motivated to find alleged assailants guilty or lose crucial federal funding.
DeVos’ tenure as Secretary of Education has so far been fraught with controversy, and whichever direction she chooses to go will no doubt draw more attention. But it’s important for advocates of survivors’ rights to acknowledge the validity of concerns about Obama-era guidelines and respect for due process.
Under the Obama-era “preponderance of evidence” standards, at schools that believe it’s even slightly more likely — perhaps a 50.1 percent chance — that an assault accusation is true, the defendant can be deemed guilty, despite the “beyond a reasonable doubt” standard used in the criminal justice system.
Obama’s tough stance on sexual assault brought an issue that had previously been swept under the rug into the national spotlight. Nonetheless, the guidelines served to disregard due process and the fundamental structure of our justice system: innocent until proven guilty. And over the years, these draconian rules have no doubt served to punish and ruin the lives of innocent students.
In the future, DeVos must be careful in choosing how she wishes to proceed with protecting the rights of the accused. On sexual assault, DeVos and her department already drew controversy when Candice Jackson, the deputy assistant secretary for strategic operations and outreach of the Office for Civil Rights claimed that “90 percent of sexual assault accusations fall into the category of ‘we were both drunk’ and ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last [time] sleeping together was not quite right.’” These comments served to trivialize and dismiss sexual assault and led to protests outside the Department of Education.
Moving forward from this controversy, DeVos and her department must tread carefully, and find a way to replace the preponderance of evidence provision with guidelines that respect the due process rights of students who have been accused without reinforcing harmful narratives and stereotypes about sexual assault survivors.
DeVos spent July meeting with groups representing individuals who had been falsely accused and faced severe consequences and trauma. Their input will be crucial to understanding why false convictions happen, and how we can prevent them.
False reporting may not happen often; research has suggested that some 2 to 8 percent of sexual assault accusations are false. But when it does occur, for the wrongfully accused, the result is disastrous.
To move forward on reform, students from both sides of the spectrum — assault survivors and falsely accused students — must have a seat at the table.
At USC, like at all major institutions of higher education, sexual assault rates continue to be a concern.
Forty-one cases were reported in 2015 — a sharp increase from the 31 reported in 2014. While this increase could be because survivors feel more comfortable reporting assault than they previously did, it could also mean that sexual assault is occurring more often, which is a chilling concept. But simultaneously, it’s unclear whether the alleged perpetrators of any of these reported assaults were falsely accused.
Though USC has taken admirable measures to combat and prevent assault from happening in the first place, preemptive strategies only go so far. A comprehensive, newly devised plan to deal with campus sexual assault needs to be enacted so that all students are protected, and both survivors and accused students are able to once again have confidence in their Title IX offices.
Why was my earlier comment deleted?
A few things to keep in mind.
1) The preponderance of evidence standard means you can be expelled for a crime you didn’t commit by 50% and a feather. Students lose the ability to continue their education as no other school will take them, not to mention the loss of reputation, and financial loss. (Both in paid tuition, meal plans, housing that isn’t refunded when you’re kicked out and future earnings because every school, graduate program and decent job will want to see your transcript)
2) The evidence standard isn’t the only thing that requires reform. Colleges often reach that while ignoring evidence favorable to the accuser, sometimes evidence that proves innocence such as text messages, witnesses, even DNA evidence.
3) The training given colleges, sometimes only 5 hours, will explain that inconsistencies in the accusers statements or the fact that they waited months or even years to report, or that parts of what they say happened can be proven false is a result of trauma to the exclusion of all else. While there is validity in that in some cases, (Think of a domestic abuse victim who stays with their abuser) there are many other reasons to be considered. Yet they’re wholly disregarded. There was a case where a girl admitted she lied, he was still expelled.
The fact that there are more reports at USC may also be because the standards of evidence and lack of accountability and re definition of sexual assault have become so out of hand that things that you currently have a man expelled for domestic violence and the ‘victim’ has consistently said she wasn’t abused. This isn’t the only time this has happened.
It’s unfair to say women lie about rape, but it’s very fair to say people often lie. Many colleges have no safeguards. There are no penalties for lying. Jackie from UVA of the Rolling Stone fiasco suffered no inquiry or sanction.
Students wrongly expelled have no recourse but to sue, something which many simply can not afford. If a college like Amherst (Which has changed it’s policy after settling a lawsuit with an expelled student that the evidence showed was not only innocent, but was black out drunk when the sex act was performed on him) has a case like that, which took over 3 years from expulsion to settlement (26 months since the filing) how many other cases might be there? And from students that can’t afford that sort of legal action.
The most common theme in these lawsuits is the college insists it followed it’s procedure and stands by it’s expulsion. If the case survives a motion to dismiss, the next step is discovery where we would see the procedure and fairness. Colleges then quickly move to settle to avoid that. The question why should be asked.
Those settlements are not only covered by insurance, but they also are covered by tuition by students paid before expulsion. They money settled is secret, but a recent report suggests the average is $187k which barely covers the legal costs for many. And it requires non disclosure agreements, so a student who had their name announced as a rapist can’t even point to a ruling that clears them. Students however will often take these because their lives are in limbo until they do. They can’t go on to another college.
Suicidal thoughts are extremely common. Thomas Klocke took his own life for what could have been handled internally with no interruption of his education. Not only did he claim he was innocent, but his defense would have amounted to sexual harassment by the young man who accused him of typing something cruel on his laptop. Discovery so far has shown that the school suspended him from that class, the one he needed to graduate w/o hearing or explanation. Emails show they admitted to having nothing, yet they found against him, destroying his plan for graduate school. (He would have had to sue, settle and then return to take the class again to graduate. And even if the settlement had expunged his record, he would have to explain the gap in his education.)
Cases have included 3rd party accusations where the victim insists nothing done, too drunk to consent when the initiator of sex was the accuser and the accused was far more intoxicated. Students who could prove innocence, cases where students were denied knowing what they were charged with. Many cases where the real victim of actual sexual assault was the one expelled because they were the guy. And the list goes on.
Serious reform is needed. What is puzzling is why those who want to advocate protection don’t reach out and work with those who ask for fairness. Instead, their dismissed as rape apologists. The last OCR head refused to meet with them.
Read some of the stories about young men who are ready to end their life because they thought the school would be fair, yet their set up to have to prove innocence, and have their feet tied behind their backs, and are cut off at the knees. They’re heartbreaking.
And it seems like each day, there’s new one.
Since the ancient Trojans were slave holders isn’t it time to pull down Tommy Trojan and abandon the whole Trojan name and theme? If we get rid of confederate statues we should also hold USC to the same standard?