Letter to the Editor: Devos’s title IX reform threatens progress against sexual assault


Distracted by flashy, headline-grabbing stories, many news outlets overlooked a sweeping development with serious consequences for Tulane students: Secretary of Education Betsy DeVos’ new Title IX regulations. DeVos’s proposed changes to Obama-era guidelines directly threaten the ability of victims to receive justice in sexual misconduct cases at Tulane and across the nation.

Last Wednesday, the New York Times reported that Secretary of Education Betsy DeVos was preparing to release a new set of Title IX regulations that would increase protection for students accused of sexual misconduct, lower the liability of colleges and universities investigating sexual violence and alter the very definition of sexual harassment. Her proposed changes directly threaten the ability of victims to receive justice in sexual misconduct cases at Tulane and across the nation. This move comes nearly a year after DeVos formally rescinded Obama-era Title IX guidelines and regulations, including the groundbreaking 2011 “Dear Colleague” letter that demanded colleges nationwide take the epidemic of campus sexual assaults more seriously.

None of the proposed changes are surprising to anyone who has been monitoring the Department of Education over the past few months: DeVos has met with several men’s rights organizations who specifically advocate for increased attention for those accused of sexual misconduct. However, in addition to raising the burden of proof for schools from “preponderance of evidence” to “clear and convincing,” DeVos is poised to eliminate institutional liability for off-campus assaults, add victim cross-examination and redefine the legal definition of sexual harassment. Each of these changes has drastic and dire consequences for victims and advocates alike.

At Tulane, per our latest Climate Survey, over 55% of sexual assaults happen off campus. For LGBTQ+ Tulanians, the percentage of off-campus assaults rises to nearly 70%. In fact, TUPD investigated only 15 cases of on-campus rape in 2016, despite data suggesting that 19% of our student body has been the victim of a rape. Eliminating universities’ liability when investigating or mishandling these cases is a tragic and blatant attempt to neglect most campus sexual assault survivors. Under the new rules, students would have no legal recourse for unfair or improper investigations if their assault happened off campus. It would exclude, for example, fraternity housing, school-sponsored trips off campus or popular bars within feet of the library.

One of the most concerning proposed changes would allow accused perpetrators to cross-examine their own victims. The Obama administration previously discouraged parties from questioning each other, noting that it was “traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.” Even imagining this scene is disturbing: a perpetrator, using an institutionally endorsed venue to batter a victim with confusing, angry, traumatizing, and abusive questions. This isn’t justice, but rather a tacit attempt to reduce reporting or, at the very least, give abusers one final chance to exert power and control over their victims.

DeVos even goes so far as to redefine sexual harassment, reserving the term for the most egregious violations or repeated complaints. The new definition requires the action be “so severe, pervasive and objectively offensive that it denies a person access to the school’s education program” before it qualifies as sexual harassment; previous guidance defined it more broadly as “unwelcome conduct of a sexual nature.” The terminology of the new definition, which stems from Supreme Court rulings dating from the 1980s, is phrased in such a way that will disproportionately discourage women, who often feel as if sexual harassment is normal and endurable, from rightfully claiming protection from harassment.

Despite the dismal outlook for these proposed rules, there is good news. As soon as the official regulations are released, the Department of Education will open a period of public comment. At that time, survivors and their allies across the country will have the opportunity to let DeVos know we don’t accept her attacks against students and survivors. On campus, Tulane students can urge our campus administrators to reject as much as legally possible any new guidance that would create more barriers for victims. And finally, as we strive to become a nation that supports survivors and rejects perpetrators, we can amplify our voices and proudly say “enough is enough.”

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