What’s next on the list of civil-rights protections the Trump administration plans to scale back? Apparently Title IX—the law that bans sex discrimination in educational institutions that receive federal money. In a speech delivered at the Antonin Scalia Law School in Virginia, Secretary of Education Betsy DeVos decried the federal government’s current Title IX policies on campus sexual assault and harassment, claiming that they enable “kangaroo courts” and often deny due process for the accused. DeVos’s remarks were no surprise to anyone who has been following her recent movements, including meetings with the National Coalition for Men—a “men’s rights” group that believes the focus on campus sexual violence harms young men and violates their civil rights.
“Schools have been compelled by Washington to enforce ambiguous and incredibly broad definitions of assault and harassment,” DeVos said in her speech last week. “Too many cases involve students and faculty who have faced investigation and punishment simply for speaking their minds or teaching their classes.”
In 2011, the Obama administration issued a directive to colleges informing them that, in order to comply with Title IX, they would need to follow specific guidelines in sexual-assault and harassment cases. These guidelines included adopting a “preponderance of evidence” standard, ending the cross-examination of accusers, and allowing accusers to appeal not-guilty verdicts. DeVos’s speech marked her intentions to reverse these policies. The ramifications of this decision are twofold: One, returning to the pre-Obama days of Title IX would allow universities to weaken their procedures for sexual-assault investigations, making it more difficult for survivors to seek justice. But even more dangerous is the message DeVos’s speech sends to those who might be inclined to forgo consent and commit sexual assault. Just as Trump’s open flirtation with white nationalists has emboldened racial violence in this country, DeVos’s courting of men’s-rights groups and adoption of their cause might also provoke more sexual violence on campuses.
DeVos’s speech shows a total failure to understand the complexity of sexual violence and the unique dynamics that may impact a campus rape investigation. But she’s far from the only voice arguing that Title IX denies due process to men accused of sexual assault. Just a day before DeVos’s speech, Emily Yoffe, a contributing editor for The Atlantic, penned a piece entirely devoted to the ways in which Title IX procedures have been “unjust to men” (she has also said that the best way for college women to avoid getting raped is to not get drunk).
Yoffe cites two incidents—one at the University of Massachusetts–Amherst and the other at the University of Southern California—to highlight how messy, complicated allegations have ruined the lives of men accused of rape. In her discussion of the UMass case, Yoffe highlights the races of those involved (the accuser was a white woman and the accused was a black man), but never once considers whether historical tropes of black men as threats to white women might have played a role in the troubled process. Instead, she places the blame squarely at the feet of Title IX. The case at USC involved a neighbor who reportedly witnessed a football player physically hurting his girlfriend; the girlfriend denied it. Yoffe laments what she calls “a troubling paradox within the activist community…the belief that while women who make a complaint should be given the strong benefit of the doubt, women who deny they were assaulted should not necessarily be believed.” But she doesn’t seem to be aware of the reason that such denials might be subject to scrutiny: Many victims of intimate partner violence are often hesitant to see it as such, and are fearful of speaking out against their abusers. (DeVos also referenced the USC case in her speech.)
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DeVos and Yoffe might represent different sides of the political spectrum, but they have something in common: They both exemplify a pervasive misunderstanding of the power imbalances inherent in sexual violence. They rail against the treatment of the accused, but the irony of their focus on due process is that it assumes society treats the accuser fairly to begin with. Victims and survivors are rarely ever granted dignity—or even trust in their story—from the get-go. Authorities suggest that they must have been “asking for it.” Racial minorities and members of the LGBTQ community are seen through the lens of harmful racist, homophobic, and transphobic stereotypes, and assumed to be liars. Survivors are often treated with disdain, rather than care. If due process is truly the goal, then we should start with these attitudes—they are the most significant barriers to a fair and dignified process in adjudicating sexual assault, not Title IX.
The current Title IX guidelines on sexual assault have their challenges and, like all policies, they could stand to be improved. For example, a recent federal court ruling interpreted Title IX protections as applicable only to students who are assaulted on their own campus. But scaling Title IX back will in no way make anyone safer. Rather, the answer is to build a stronger movement against rape and sexual assault both on and beyond college campuses. If educational institutions took a more proactive and comprehensive approach to sexual education, choosing to explain to middle- and high-school students the full gamut of sexual health, including the difference between consensual and non-consensual activity, maybe survivors would be less unsure about their right to back out of sexual activity once they no longer want to continue. Maybe those accused would possess a clearer understanding of consent, and the fact that under no circumstances is it irrevocable.
Due process in adjudications of sexual-assault cases is an admirable objective. But dialing back Title IX is exactly the wrong way to go about it. If we want Title IX procedures to work better, we can start by arming young people with meaningful information about sex and consent, and abandoning the harmful victim-blaming that fundamentally miscasts sexual violence as sex gone wrong, rather than one individual exerting power over another. Encouraging universities to treat sexual-assault investigations with less vigilance will yield nothing short of disaster.
