Title IX is Being Reformed. Was it Broken to Begin With?

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In 1972, the 92nd United States Congress passed the Education Amendments of 1972, or Title IX. The law reads, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” To paraphrase, no person attending a federally aided educational institution or program shall be discriminated against due to their sex.

In 2011, the Obama Administration sent letters to 7,000 higher learning institutions . These are known as the “Dear Colleague” letters. The letters are divided into 19 pages and define, in part, what qualifies as sex discrimination. The U.S Education Department (ED) says that, “The letter is a significant guidance document,” and according to the Office of Civil Rights (OCR), they are meant to provide recipients with guidance in order to help meet their obligations.

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Yet, schools have enforced the Title IX requirements as defined under the “Dear Colleague” letters. Most schools complied out of fear of losing Federal funding from the government, which in an educational institution would be catastrophic. However, it’s not a piece of legislation, but expectations rather. The ED states, “This letter does not add requirements to applicable law”.

While Obama’s letters attempted to clarify what Title IX protected against, it did the opposite. Page two of the letter states “Sexual assault, sexual battery, and sexual coercion. All such acts of sexual violence are forms of sexual harassment covered under Title IX”. As of April 2015, Title IX does not explicitly cover these forms of sexual misconduct.

Certainly without a clear layout of the law, much can be up to interpretation. If it’s as sensitive as it is being told, then a simple smile from across the room can heighten suspicions causing witnesses to become the accuser as opposed to the victim. Title IX and the letters have established that everyone is obligated to report these suspicions.

Emily Yoffe, contributing editor for the Atlantic states, “Most school employees were designated as mandatory reporters, responsible for alerting Title IX officials about possibly questionable sexual encounters, even if a supposed victim had no interest in reporting. This has resulted in students being labeled as perpetrators and punished even when no victim has come forward, or when the alleged victim strenuously objects to the adjudication.”

It is also being noted that Title IX under the Obama Administration is overstepping its boundaries. Shikha Dalmia, a writer for The Week says, “What’s more, this was a perversion of the true purpose of the title IX statute, which wasn’t to police sexual interactions between students, but to ensure non-discriminatory campuses where both genders have full and equal education opportunities.”

Title IX was supposed to assure that everyone was treated fairly regardless of their sex. Now, it has turned into an overparenting law. The flaws in the Obama-era Title IX highlight the echoes of the #MeToo period and what it means to feel uncomfortable in someone’s presence.

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Instead, Obama’s “Dear Colleague” letters have caused confusion, more rape allegations, and a disbalance of justice for the accused. Robby Soave, a writer for Inside Sources says, “ The guidance also produced an endless stream of lawsuits from students-usually male, often athletes of color-who were accused of sexual misconduct and expelled from campus.”

Soave’s criticism of the current Title IX is reminiscent of the Duke Lacrosse case where three male student lacrosse players were falsely accused of rape by a female student. In 2007, the charges were dropped against all three men. However, this came after their coach was asked to resign, had their games suspended, and their season ultimately terminated. North Carolina Attorney General Roy Cooper had dropped the charges. Cooper said the boys were “victims of a tragic rush to accuse.” The defendant faced no charges in the final proceedings and her claims were blamed on “weak memory”.

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Secretary of Education, Betsy DeVos has plans to reform Title IX. According to the ED, DeVos’ proposed changes would edit the rulemaking process, provide greater clarity, control the amount of complaints, and make the determination of allegations as well as legal processes more fair.

Her plan would also use the Clergy Act definition of sexual assault. Under the Clergy Act in CFR 668.46(a), a sex crime could be rape, fondling, incest, and statutory rape.

The Clergy Act defines a sex offense as, “ Any sexual act directed against another person, forcibly and/or against that person’s will; or not forcibly or against the person’s will where the victim is incapable of giving consent because of his/ her temporary or permanent mental or physical incapacity (or because of his/her youth). This offense includes the forcible rape of both males and females.”

This will also serve alongside what is already stated in Title IX. In addition to the qualifying sex crimes, the proposal also would monitor instances in which “A school employee conditioning an educational benefit or service upon a person’s participation in unwelcome conduct (often called quid quo harassment).” According to the ED Title IX Regulation Fact Sheet.

The ED has laid out “due process protections” such as presumption of innocence, burden of proof on the school, live hearings, a prohibition of the single-investigator model, and an equal opportunity for parties to appeal. Since the Obama-era Title IX, it has been suggested that defendants are not given due process in such cases and that it has restricted their room to protect themselves.

According to Dalmia, “ It lowered the evidentiary standard for conviction in sexual misbehavior cases from requiring ‘clear and convincing’ proof to one where a mere ‘preponderance of evidence’ would do. The current Title IX will take 51% of the evidence presented before making an allegation,” according to Dalmia.

The new Title IX gives the courts permission to cross-examine witnesses and victims. This would include having a live court where either of them are put on a stand and questioned by an attorney. This practice was not permitted under Title IX prior.

Soave mentions a University of California-Davis student who had to pay $12,000 to defend himself against an allegation of nonconsensual touching.  He was an athlete and gave up his chance to play in the NFL. He was found not guilty, but the plaintiff later appealed the finding. he wasn’t notified and was charged again. He had lost the case.

“DeVos’ reforms will make these travesties of justice less likely,” says Soave. “For one thing, they require cross-examination, which means accused students will be better able to defend themselves.”

Soave claims that DeVos and the ED’s proposal is “contentious but necessary.” On the opposition, Toni Van Pelt, also a writer for inside source says “We don’t see you. We don’t hear you. We don’t believe you,” says Pelt, “ The rule will give new rights to the accused, reduce liability for schools, and tighten the definition of sexual harassment.”

While it can be understood that many feel as though the proposals resort to victim blaming, a lot of others are standing up for a contentious Education Department to ensure a more organized law that will not prosecute a defendant until they have received a fair trial.