Editorial: Moving forwards, not backwards, on Title IX

Casey Orledge/THE REVIEW
Education Secretary Betsy DeVos is tearing up the Obama-era Title IX guidelines that govern how universities handle sexual misconduct cases.

On Friday, Education Secretary Betsy DeVos rescinded an Obama-era Title IX guidance, adding another installment in President Donald J. Trump’s prolonged assault on the former president’s social policies.

The administration is formally withdrawing the “Dear Colleague Letter,” which was issued in 2011 by the Office for Civil Rights at the U.S. Department of Education. The Dear Colleague Letter imposed new mandates for the investigation, adjudication and resolution of all allegations regarding student-on-student sexual misconduct. In particular, the Dear Colleague Letter was issued in response to the massive problem of on-campus, student-on-student sexual assault at institutions of higher education.

Earlier this month, Education Secretary DeVos expressed concern over the denied proper due process to those accused under the Obama-era Title IX guidance.

The new set of guidelines, announced on Friday, are not mandatory. Furthermore, they loosen the mandates on how educational institutions may investigate student-on-student sexual misconduct and enact discipline on the accused.

This is a huge mistake.

Prior to the Dear Colleague Letter, universities, around the country were largely able to decide themselves how they would treat on-campus alleged sexual misconduct. In those days, it was not uncommon for a university to prioritize their image and reputation over any possibility of justice for the survivors of such heinous crimes.

Our community is no stranger to sexual misconduct; professors, members of Greek life and the university community as a whole, have perpetrated sexual misconduct. The Obama-era Title IX reform was an important step forward that held universities such as ours accountable, ensuring that survivors of sexual assault have a chance to receive justice for what has been wrongly done to them.

Nonetheless, Title IX critics, whom DeVos is pandering to, often complain that this system runs roughshod over the rights of the accused and deprives them of a fair trial in our country’s criminal justice system. Our criminal justice system is designed to protect the innocence of those accused of a crime until they have been proven guilty beyond a reasonable doubt in a court of law, with stringent constitutional protections in place to ensure a fair trial. Two of the most important changes that DeVos announced appear to be intended to shield the accused from charges and criminal proceedings.

First, DeVos announced that the standard of evidence, which measures how much evidence there must exist in order to find a defendant guilty, would change from a preponderance of the evidence to a clear and convincing level of evidence. A preponderance of the evidence means it must be more likely than not, in other words that 51 percent of the evidence must point to guilt, in order for somebody to be found guilty. The standard of clear and convincing would raise that bar substantially, making it harder for somebody to be found guilty of sexual misconduct.

Second, the new guidelines state that the accused must be able to question the person accusing them of misconduct. This is modeled after the sixth amendment of our constitution which states that somebody accused of a crime has the right to “be confronted with the witnesses against him.” This is interpreted in our legal system as having the right to cross examine and question any witness against the defendant. During cross-examination, sexual misconduct survivors, the accusers, would have to face the trauma of directly confronting their rapists, the accused.

Universities have the option to keep their current system or to modify it within the new guidelines. Our university has not yet released a statement on these changes.

Activists are worried that, not only will these changes make it more likely for accused rapists and attackers to escape the consequences, but the effect of being asked questions or cross-examined by the accused student would have a devastating impact on the survivors of sexual assault.

Make no mistake, the Obama-era system needs reform. Critics are quite right in saying that the accused face consequences, such as expulsion or incarceration that can result from a criminal trial. But the changes in their present form were created without consulting the survivors of sexual assault and they risk unraveling all the progress that activists have made on the issue in recent years.

The Review stands by survivors of sexual assault. We cannot afford one step backwards on Title IX.

Editorials are developed by The Review staff, led this week by Investigative Editor Jacob Orledge who can be reached at orledgej@udel.edu.

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