Updated: May 29
TW: Sexual Violence
Dear Asian Youth,
Betsy DeVos: the Secretary of Education notorious for her attempts to remove the rights of disabled students, queer students, and teachers. You may even know her as the lady with the counterintuitive policies, such as decreasing funding for struggling schools in order to fund charter schools. Her newest project, you ask? Attacking the rights of sexual assault survivors and defending the accused. After several meetings with men’s rights organizations, she has completely changed the Title IX amendment, which functions to protect the rights of students against gender discrimination in any publicly funded school or college. Sexual harassment that impedes education is considered discrimination and thus is covered within Title IX.
As if Title IX wasn’t already unenforced across the nation, DeVos has taken strides to further reduce schools’ accountability. In a new measure that literally nobody asked for, DeVos has narrowed the definition of sexual harassment. This was done so with the intention to protect against “false allegations”, instead of protecting victims. Little does DeVos know, only 8% of accusations are proven to be false after investigation. You would think that the Secretary of Education would have basic knowledge of sexual harassment statistics, but she was nominated by President Donald J. Trump (the “grab ‘em by the p*ssy” guy)—so no surprise there!
Under the Obama administration, sexual harassment was defined as the “unwelcome conduct of a sexual nature.” This included “requests for sexual favors and other verbal, nonverbal, or physical conduct of a sexual nature”. But the new rules introduced by DeVos define it as “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school's education program or activity.” This means that an assault has to strip a student of their right to education and flip their lives upside down for an investigation to even be considered. What DeVos fails to recognize is that rape can be severe and pervasive without being objectively offensive, and vice versa. The narrowed definition would allow schools to sweep sexual allegations under the rug—an option that many schools would gladly accept, as sexual harassment cases cost an average of $350,000 per university.
The measure not only defends the accused but reduces the responsibility of schools to protect their students from sexual harassment. Obama-era guidelines required schools to take responsibility if they were aware of or should have reasonably been aware of the harassment. Now, in order to reduce school liability, the school is only required to take action if they had “actual knowledge” of the incident. Under this new rule, schools will not be found in violation of Title IX for their failure to notice sexual harassment. And in universities, this requirement of “actual knowledge” is only fulfilled when a report is made to the Title IX Coordinator or a responsible school official; a mere RA wouldn’t be considered the “right” person to report to, making it far more difficult for survivors to speak up. Furthermore, colleges are only allowed to act upon reports that occur on school property, meaning that most off-campus reports will be promptly ignored by schools. According to Know Your IX, “Only about 8% of all sexual assaults involving middle school, high school and college students occur on school property. That means DeVos’ Title IX rule would require schools to dismiss around 92% of all reports”. By refusing protection for the victim, the victim is only left with two choices: to continue seeing their harasser in class every single day, or to drop out and give up their education. Neither choice sounds appealing. In addition, under the new rules, there is no recommended maximum time to conclude a case, unlike the previous 60-day timeline. Instead, investigations are recommended to be “reasonably prompt” — a vague rule that allows for schools to delay or extend cases for however long they’d like. Survivors may have to retell and relive their traumatic experience for months.
The standard of evidence has also changed. Sexual assaults are notoriously difficult to convict due to the inability to provide sufficient evidence of the crime. Because of this, strides have been made to protect victims and believe accusers. DeVos’ new rules, however, aim to make it even more difficult for victims to prove sexual assault. Her regulations would give schools the option to choose between “preponderance of the evidence” or “clear and convincing evidence”. Previously, the only standard of evidence a school could employ was the “preponderance of the evidence,” which required 50% certainty that an assault occurred to find the accused guilty. But the new “clear and convincing evidence” holds the victim to a higher burden of proof - 85 to 90%. As there are often no witnesses to the crime, this makes it a nearly impossible burden to overcome, dramatically reducing the ability to convict offenders. Schools, with their reputation on the line and their budgets depleted, will more than likely choose the higher standard of evidence and abandon their responsibility to the survivor.
The Department of Education, on the other hand, is trying to play it off as if the rule changes aren’t as bad as they seem. They claim that “Secretary DeVos is Taking Historic Action to Strengthen Title IX Protections For All Students.” In reality, DeVos is taking detrimental action to strengthen Title IX protections for harassers and rapists at the cost of victims’ rights. They claim that the new rules will offer an equal right to appeal for both parties. In reality, victims will now be subjected to brutal cross-examinations, in which the examiner can be anyone other than the accused. This means that a victim could be interrogated and humiliated by the harasser's mother or fraternity brother. The entire reason students decide to report to schools instead of law enforcement in the first place is because of the many barriers students may face if they choose the latter: the institutionalized discrimination on the basis of race and sex, the inefficiency, and the terrorizing cross-examinations. Under DeVos, the Title IX process will mimic that of a court, subsequently creating an unsafe space for vulnerable students.
DeVos essentially tries to fit every sexual assault case into a cookie-cutter mold, even though no case is exactly the same. These rules will make it extremely difficult, if not impossible, for survivors to speak up. Survivors will question if there is even a point in coming forward. Will school officials listen? Will their traumatic experience be “severe, pervasive, and objectively offensive” enough for the school to protect them? Enough for the school to even acknowledge the report? Survivors may undergo a humiliating trial, be questioned and berated by their peers, provide evidence of the crime, and still see their harasser go on unpunished and unaffected.
Personally, I was totally unaware my school district had a Title IX coordinator until this month. My friends weren’t even aware that Title IX rules existed to protect them (or at least, Title IX used to). I have never heard any school counselors even utter the word, “Title IX” or “sexual harassment.” Now, Betsy DeVos is actively working to rob these rights from unknowing students amidst a global pandemic, when students are already facing financial instability and mental health issues. In 2011, the Obama administration worked to enforce Title IX across the nation with the Dear Colleague Letter by setting guidelines for schools to follow. While it was not perfect, it was a step towards a fairer and more forgiving Title IX. The Trump Administration effectively reverses all the progress made.
Regardless of this, it is important to realize that you are not alone. There are so many of us fighting for our rights across the nation, and we will do whatever is necessary to prevent these rules from being implemented. Dear Asian Youth will be focusing more heavily on Title IX in the future, and we will stand by you until our voices are heard, loud and clear. In the meantime, we’ve curated a Title IX toolkit that you can use to protect your rights.
- Stephanie and Elizabeth