Title IX turmoil: Why the Education Department’s guideline rescission has split officials, citizens

Photo courtesy of Gage Skidmore / Flickr

On Sept. 22, Education Secretary Betsy DeVos announced that the U.S. Education Department was rescinding guidance regarding how universities should deal with sexual assaults under Title IX federal law, which was put into place during the Obama administration. The announcement and subsequent rescission has been met with mixed responses from school officials, students and citizens.

Upon the withdrawal of the Obama-era guidance, the Education Department released a Q&A document as a form of interim guidance on how cases should be dealt with and how schools should respond to accusations of sexual misconduct. The Q&A has taken the place of the Obama administration’s “Dear Colleague Letter on Sexual Violence and the Questions” and “Answers on Title IX Sexual Violence,” which both provided guidance on how schools were to respond to allegations of sexual assault. The above documents have been criticized by officials, such as DeVos, due to the belief that they allowed for an unfair judicial process.

“This interim guidance will help schools as they work to combat sexual misconduct and will treat all students fairly,” DeVos said in a press release. “Schools must continue to confront these horrific crimes and behaviors head-on. There will be no more sweeping them under the rug. But the process also must be fair and impartial, giving everyone more confidence in its outcomes.”

The new Q&A document is meant to introduce a more just process for those who are accused of sexual misconduct. The Obama-era guidelines advised that colleges use the lowest standard of proof when adjudicating an accused student. The interim guidance has allowed for colleges to choose to raise the standard to “clear and convincing evidence.”

A Department of Education press release, which was published on Sept. 22, stated, “The withdrawn documents ignored notice and comment requirements, created a system that lacked basic elements of due process and failed to ensure fundamental fairness.”

When asked if the interim guidance would allow for a more balanced judicial process, MTSU Title IX Coordinator Marian Wilson promptly stated, “No. I do not.”

“I think that one of the things is that they have painted every institution with a big brush,” Wilson said. “They are suggesting that every campus has gone rampant. I don’t think that that’s happening on every campus. I don’t think that it is happening here … My worry with the interim guidance is that students who have been harmed will not report.”

Wilson is in charge of the implementation and oversight of Title IX compliance at MTSU, which includes the coordination of training, education, communications and administration of grievance procedures for faculty, staff and students. She stated that the Obama-era guidelines, when first instituted, helped to raise awareness of the issues that many campuses faced.

“I think (the Dear Colleague Letter) put all institutions on notice,” Wilson said. “Institutions needed to pay attention to sexual misconduct. I think that Obama’s guidance was very clear.”

Despite her concern that less students will report acts of sexual misconduct, Wilson said that impact of the Sept. 22 announcement has been minimal at MTSU.

“Right now, it doesn’t mean any change from us,” Wilson said. “They allowed institutions to change their standard. We haven’t done that. We are following our policies and procedures.”

Some, however, believe that the interim guidance will lead to the more balanced process that DeVos reportedly intended. According to Susan Kruth, a senior program officer for legal and public advocacy at the Foundation for Individual Rights on Campus, the new guidance has provided schools with the tools to create a safer environment for all parties involved in sexual assault judgements.

“The rescission of Obama-era Title IX documents removes a few of the impediments to fair disciplinary hearings on campus,” Kruth said. “Specifically, the rescinded 2011 Dear Colleague Letter required schools to use the low ‘preponderance of the evidence’ standard when adjudicating sexual misconduct cases — essentially allowing for life-changing punishments based on a hunch. The Department of Education has now made clear that schools may use either the ‘preponderance of the evidence’ standard or the higher standard of ‘clear and convincing evidence’ for these cases. A higher standard of proof will help protect against erroneous guilty findings, which can unjustly derail students’ educational careers.”

FIRE is an organization that is dedicated to the defense of individual rights for students on college campuses. According to FIRE’s website, such rights include “freedom of speech, legal equality, due process, religious liberty and sanctity of conscience.”

FIRE recently published a report, in which the organization analyzed the disciplinary procedures at the U.S News & World Report’s 53 top-ranked institutions. FIRE created a rating system for the report, which rated each institutional policy on a scale of zero to 20 and with a grade of an A,B,C,D or F.

The report states that “79 percent of rated universities receive a D or F for protecting the due process rights of students.”

FIRE also found that 74 percent of the universities that were analyzed do not guarantee accused students the right to be presumed innocent until proven guilty. 47 percent of the universities require that “fact-finders,” which are the institution’s version of judge and jury, be impartial, according to the report, and 68 percent of the universities did not consistently allow students to cross-examine the people who have accused them or the witnesses that have spoken out against them. The report also found that 60 percent of the universities did not allow for consistent cross-examination in cases of sexual misconduct.

A press release that explained important details of the report states, “At institutions that provided few procedural protections to begin with, (the Dear Colleague Letter) left accused students vulnerable to guilty findings unsupported by reliable evidence and reached without following fair procedures.”

Even with FIRE’s contempt toward Obama-era guidelines, others, such as Stephanie Carpenter, an MTSU senior and the president of the Nonviolence Brigade of MTSU, believe that guidelines such as the Dear Collegue Letter fairly protected the victimized and accused.

“The Dear Colleague Letter that Obama set in place just tried to make it where schools could do something if the courts couldn’t,” Carpenter said. “I think what they are trying to do now is if the courts aren’t going to do anything, the schools can’t either, and that is extremely detrimental.”

The Nonviolence Brigade of MTSU was founded in April of 2017, and the organization supports the prevention and awareness of sexual assault, domestic violence, discrimination, gun violence, fighting, etc.

Carpenter stated that she is also concerned that many assaults will go unreported.

“People are still afraid now to report it because they feel nothing will be done,” Carpenter said. “The Dear Colleague Letter didn’t fix everything. It just helped the situation. Now that (it is) rescinded, people are going to be even more afraid.”

Carpenter said that DeVos’ argument that the previous guidelines allowed for wrongful accusations will, in fact, result in further misconduct.

“I’ve read the Dear Colleague Letter several times, and about 30 times in there, it is stressed that you have to be fair to both (parties),” Carpenter said. “So, either (DeVos) hasn’t read the Dear Colleague Letter, or they are trying to protect the accused more than the victim.”

To contact News Editor Andrew Wigdor, email newseditor@mtsusidelines.com.

For more news, follow us at www.mtsusidelines.com, on Facebook at MTSU Sidelines and on Twitter at @Sidelines_News.

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  1. Avatar
    October 6, 2017

    I personably believe that this is a good move in the direction towards safer campuses for both parties in these cases. Rape is a very serious offense that should be taken very seriously in my opinion. I personably believe that anybody who is rightly and justifiably convicted of rape should be castrated or killed. The lax system of incarceration today does nothing to resolve the issues of our country, nor does it fix anything for either party involved. People who are convicted of rape correctly need to be dealt with to the fullest extent that our law has to offer. Only then will we create a safe enough space where people who have been raped can feel safe to share their experiences and bring all rapists to justice. I believe that swifter, and more complete and impactful punishment is completely necessary to ensure the safety of everybody.

    With that said, I do also believe that there needs to be substantial, definitive evidence that rape has occurred taken from both parties involved. Too often are peoples lives ruined by false rape accusations and false convictions of rape. A 1996 study published by the U.S. Department of Justice found that, “Every year since 1989, in about 25 percent of the sexual assault cases referred to the FBI where results could be obtained, the primary suspect has been excluded by forensic DNA testing. Specifically, FBI officials report that out of roughly 10,000 sexual assault cases since 1989, about 2,000 tests have been inconclusive, about 2,000 tests have excluded the primary suspect, and about 6,000 have “matched” or included the primary suspect. These percentages have remained constant for 7 years, and the National Institute of Justice’s informal survey of private laboratories reveals a strikingly similar 26 percent exclusion rate.” This is an unimaginably high percentage, roughly 20% or higher, of false rape accusations in the United States. Such a potentially high false accusation rate can be very damaging to both parties involved, particularly for the party accused. I personably believe that there should be some form of punishment meant to incentivize complete honesty in rape cases. False rape accusations can absolutely devastate the life of the accused, and therefore should not be taken lightly.

    In conclusion, I personably believe that there should be punishment for false rape accusation, as well as much harsher punishment for those guilty of rape charges. The sooner we treat this situation with the importance it requires, the sooner campuses and the world alike will be safer.

  2. Avatar
    October 6, 2017

    I am not sure how to take this information. On one hand, it sounds like Title IX has been drastically changed, yet it sounds it simply sounds like changes that occurred during the Obama administration are being undone. The concept of “clear and convincing evidence” goes along with the “innocent until proven guilty” motto that the United States tends to cling to. I don’t think that the legislation will change to make it optional for schools to investigate, but, perhaps, schools will need a larger amount of evidence before than can continue the investigation and go forward with disciplinary actions. The article elaborates that a firmer sense of “due process” will be applied; I am unsure that due process was not occurring or not. Marian Wilson, Title IX Coordinator for Middle Tennessee State University, does not think these changes will add anything to the process. I also agree with Wilson that it sounds like the government thinks universities are riddled with sexual harassment and assault cases. I mean, they happen, but not constantly.
    I am unsure of what exactly is being changed. Wilson states that MTSU has not changed policies, yet. The proposed changes are not mandatory. Overall this is a good article with in-depth reporting and analysis.