Setting the record straight on Title IX
The debate over US Secretary of Education Betsy DeVos’s proposed revisions to the Title IX antidiscrimination law has promulgated misconceptions, myths, and outright lies, all of which cry out for correction.
The 1972 law was put in place to ensure equal access to education regardless of sex. Since 1977, it has been used as a remedy to complaints of sexual harassment and assault. In light of the law, the Office of Civil Rights of the Department of Education has required schools to respond promptly and with appropriate remedies in response to sexual harassment. After media reports of widespread failures by schools to live up to their obligations under the civil rights law, and congressional hearings on the issue, guidelines were issued by the Obama administration in 2011.
Which leads to the first misconception about Title IX: that grievance hearings held in accordance with the law are criminal proceedings. They are not. Discrimination based on sex in educational institutions constitutes a civil rights violation. That’s why the 2011 guidelines recommended that schools follow the same standards of evidence used by federal courts ruling on civil rights cases.
Due process calls for a standard of evidence that matches the potential penalties. The maximum penalty that a school can impose for any violation of its code of conduct, including Title IX violations, is expulsion. There is no loss of liberty. When Title IX critics demand criminal standards of proof such as a presumption of innocence for civil rights violations, they ignore a fundamental principle of due process.
Second is the dual myth that the only people who report claims of sexual harassment and assault under Title IX are women, and that they frequently make false allegations. This is not true. Campus sexual assault and harassment is a serious problem for students of all genders. More than 1 in 10 of the 150,000 respondents to a 2015 survey of students at 27 colleges reported having experienced sexual assault. Approximately 24 percent of these students identified as transgender or nonbinary, 22 percent as female, and 6 percent as male. Moreover, people rarely lie about being victims of sexual assault, while those who commit such acts nearly always do.
Finally, there are the many egregious misrepresentations of what Title IX does and does not do. Typical criticisms insinuate that Title IX requires schools to accept the truth of all allegations without allowing the accused to present refuting evidence and that Title IX creates rules for campus disciplinary outcomes. These claims are simply not true.
Since the 2011 guidelines were established, tremendous progress has been made. Many schools now have policies and practices in place informed by research on offending behavior and victim impact, with properly executed due process. As a result, the 2011 guidance enjoys strong, bipartisan support, as shown by the tens of thousands of public comments submitted in response to the proposed changes. Here in Massachusetts, Mayor Marty Walsh of Boston submitted a letter to DeVos opposing the changes. So did Massachusetts Higher Education Commissioner Carlos E. Santiago, on behalf of the Baker administration. Additionally, many schools have announced that they will make no changes to their existing Title IX policies because things have improved so much. (Yale president Peter Salovey said that the proposed changes “would replace our carefully constructed procedures” with others that “would be harmful to our students and other community members.”)
Sexual violence is endemic in our society. It affects people of all genders, ages, races, and abilities. It happens in homes, workplaces, and schools. Thanks to the 2011 guidance regarding Title IX, significant progress is being made in implementing orderly processes for adjudication of sexual assault complaints in schools. When we see such institutions fail their students — both those who’ve been accused of sexual assault as well as those who have made reports — it is inevitably because there was no Title IX process in place or established protocols were ignored.
The solution is not to pull back from Title IX enforcement, as the Trump administration now seeks to do. It is to continue the painstaking work of equitable implementation of the law.
Gina Scaramella is executive director of the Boston Area Rape Crisis Center.