When the Obama Administration’s “Dear Colleague” letter, the document outlining Title IX guidelines, was disseminated six years ago, many saw it as a success in both recognizing and taking action against the epidemic of sexual assault on college campuses. By threatening to withhold federal funds for institutions that did not comply with its regulations, the Obama Administration took a bold, severe stance on persecuting sexual violence and ensuring that survivors were given the opportunity for the justice they deserved.
The benefits of Title IX were called into question last week when Trump’s Secretary of Education, Betsy DeVos, announced that she has the “intention to revoke or rescind the previous guidance around [Title IX].” This provocative stance on a law many viewed as constructive sparked outrage and protest, with survivors of sexual assault and their allies voicing concerns that, without Title IX, rape culture would thrive and college campuses would slip back into an environment that didn’t support the victims—and protected the accused. Her reasoning centered on the apparent lack of due process that Title IX allowed for the alleged perpetrators, stating that “a system without due process ultimately serves no one.”
This stems from the lower requirement of proof that Title IX allows in its investigations: a “preponderance of evidence,” meaning evidence that can demonstrate sexual violence more than likely occurred, as opposed to “clear and convincing evidence” or “beyond a reasonable doubt,” which is required in criminal court cases. DeVos argues this lower bar required for evidence hurts those accused of sexual assault—whose lives get put on hold during investigations—particularly those who are wrongfully accused.
One specific case is detailed in an article in The Atlanic by Emily Yoffe, “The Uncomfortable Truth About Campus Rape Policy.” She relays the story of Kwadwo “Kojo” Bonsu, a student at the University of Massachusetts at Amherst, set to graduate in the spring of 2016, who, following an encounter with a white female student at his fraternity’s party, found himself the suspect of a sexual assault investigation. During their encounter, in which they talked and smoked marijuana, the young woman initiated oral sex, realized how high she was, and then began to feel uncomfortable with the situation. She continued, however, to avoid being “a bad sport.” After she left the party that evening, she contacted the Resident Advisors on duty, reporting that she had been sexually assaulted.
In the Title IX investigation that followed, Bonsu was, understandably, restricted from contacting the female student, visiting any residence hall that was not his own, entering the student union, or eating in a dining hall other than the one the school allowed. These are guidelines outlined in the “Dear Colleague” letter to ensure the safety of the complainant as he or she continues to pursue their education. Other guidelines include providing an escort to and from class, counseling services, academic support, and making sure the alleged perpetrator and complainant do not attend the same classes.
Because of his ban on communicating with the young woman, when she claimed that he had attempted to friend her on Facebook (which he offered documents to the administration to disprove, although they refused to examine them), he was banned from campus except for attending class. He was eventually forced to drop two classes, became incredibly sick, and returned home to Maryland to recuperate from two successive bouts of pneumonia. It was during his second time being ill that his hearing was scheduled. His lawyers asked for the date to be changed, but the school refused and went on without him – ultimately finding him not guilty of sexual assault. Regardless of the outcome, however, Bonsu’s life had been completely uprooted: he withdrew from UMass, attempted applying to other universities but got denied until, after a year and a half after leaving UMass, he finally finished his engineering degree at University of Maryland, Baltimore County.
After hearing a distressing case such as Bonsu’s, it is difficult not to consider that Title IX, in its quest for justice, shows disregard for “innocent until proven guilty.” From the purposeful strictness of Title IX, an unintended consequence arises: college administrators may exaggerate federal guidelines in order to appear submissive to the statute and active in purging college campuses of sexual violence, in order to avoid federal funding sanctions. Another possible reason is incompetence; or, simply a lack of genuine adherence to the guidelines. For example, the “Dear Colleague” Letter explicitly states the following: “Throughout a school’s Title IX investigation, including at any hearing, the parties must have an equal opportunity to present relevant witnesses and other evidence.” Bonsu could not attend the meeting, and therefore, could not present information that would adequately defend him.
There have also been cases reported at other schools, such as Colgate University, of administrators pursuing rumors and encouraging, even pressuring, young women to make a complaint in order to appear as though they take sexual violence seriously. In one case, a woman was pressured into telling her story, and upon hearing of the expulsion of the perpetrator, believed that that was not even the right course of action.
This drastic push to report sexual assaults not only infringes upon the rights of survivors, and their personal decision to share their story or not, but is also racially biased in nature. Colgate, for example, is 4.2% black, yet 50% of the sexual assault allegations involve black men. There is another instance at the University of Findlay where, a week and a half after two separate sexual encounters that the complainant allegedly bragged about to her friends, the white student filed a complaint of sexual assault. Two days later, the two black students were expelled from the university, in blatant disregard to Title IX procedure. Would the sanctions on Bonsu have been as strict, or the expulsion of the two Findlay students as swift, if they had looked more like Brock Turner, the white, Olympic-aspiring swimmer at Stanford University who raped a girl behind a dumpster?
These criticisms behind the implications of Title IX do not, however, support the complete overhaul Betsy DeVos is suggesting, particularly in terms of the preponderance of evidence. According to RAINN, for every 1000 rapes, only six rapists will be convicted, a significant reason that two out of three sexual assaults are not even reported to police. The criminal justice system, and the burden of proof required in criminal court, inherently puts the encumbrance upon the victim to convince a jury beyond a reasonable doubt that he or she experienced sexual violence in a society that perpetuates rape culture and the belief that women, especially, lie. By relying upon only a preponderance of evidence, Title IX provides survivors the opportunity for justice that a criminal court apparently cannot. The real issue DeVos should be considering is this: how can our government expect academic institutions to hold the justice of their students to a higher standard than our courts evidently hold for their citizens? By altering the level of necessary evidence, by putting that pressure upon the victim, DeVos will inherently protect the abuser and inevitably silence so many more who would be scared to step forward.
Title IX, of course, is not perfect, but this simply means that more focus must be placed upon examining how schools move forward with their procedures, if they are fair, safe for the survivor, effective, and non-discriminatory. Beyond this, there needs to be a rallying around the suppression of rape mentality, the kind of mentality that women subconsciously ingest from society, the one that made the young woman who filed against Bonsu feel as though she must continue, so as not to make him upset.
While I appreciate the attention Secretary DeVos has brought to Title IX, I have profound apprehension that her revised Title IX guidelines will provide protection for sexual abusers. I worry her changes, if not done thoughtfully with input from survivors and administrators, will enflame rape culture, not only on college campuses but across the United States – allowing people, like the man who appointed her, to freely claim they can grab women by the pussy and not face the consequences.