On Friday, September 22nd the U.S. Department of Education rescinded Obama-era Title IX guidelines. The Dear Colleague letter, which expanded Title IX protections against sexual violence for students was finally withdrawn. DeVos has made it clear to the public that she believes those accused of sexual violence are also victims, but they are victims of Title IX. She stuck to her belief that the “preponderance of evidence” proof recommended by the Dear Colleague letter was unfair and that a “clear and convincing” standard of proof is more equitable. DeVos’s new guidelines certainly protect those that are accused of sexual misconduct, but they loosely protect the rights of victims. Due process rights are vital, but when concerning sexual violence, the voices of victims need to be heard clearly and they need to be protected. Sexual violence needs to be treated as a crime and not disorderly conduct with only the potential of consequences. We need to hold our educational institutions accountable and most importantly we need to hold perpetrators of sexual violence accountable.
DeVos’s new guidelines spell out some significant changes to the previous guidelines. Under the new guidelines, colleges can choose which standard to follow, either preponderance of evidence or a clear and convincing standard. This not only confuses the process within schools, but it does not ensure that sexual violence will be treated similarly in each school across the nation. Which implies that the right to a safe environment in educational settings is not a guarantee because it is trumped by due process rights of the accused.
Another significant change was the movement from a fixed time frame of 60 days for Title IX investigations to “no fixed time frame” at all. This change was done under the assumption that Title IX investigations were managed too quickly and unfairly pinned those accused of sexual violence as guilty. However, the new guidance has dangerous potential. If there is no fixed time frame, it implies that schools can choose to not do anything about sexual violence cases presented before them for however long they choose. This also does not logically make sense if we are fitting it in the context of the new guidelines because DeVos’s first guideline states that a school must act on a complaint of sexual misconduct. If there is not a fixed time frame, it is basically suggesting that the school does not have to take a stance on the sexual misconduct and this contradicts her statement that schools must take a stance.
A third notable change is the implementation of an appeals policy by schools. If schools choose to do so, they can set an appeals policy that allows “both parties or accused students only” to appeal the case. This seems the least destructive of the new guidelines. It is fair and ensures that due process rights are safeguarded. However, there should be clearer definitions regarding why parties can appeal and it should be held to strict standards. For example, an appeal should not be heard solely on the basis that a perpetrator says they did not commit the crime of sexual violence.
A fourth change states that schools can resolve a Title IX investigation with “informal means” such as mediation. This is by far one of the controversial additions to the guidelines. The distinction is that under DeVos’s language sexual violence is not treated as a crime, it is treated as misconduct. The two words do not hold the same weight. When indicating that mediation can be reached between a perpetrator and a survivor one assumes that the victim will not be traumatized by the act of the accused. Mediation works when settling civil disputes, not when someone commits an act of sexual violence against another human being.
Victims of sexual violence will have to constantly jump hurdles under the new Title IX guidelines created by DeVos. Rescinding the Dear Colleague letter and replacing it with unclear guidelines will pave a dangerous road for victims of sexual violence. Loosely defining the investigative process will leave schools without definitive guidance and will create a free for all administration of Title IX guidelines across the nation. We cannot let this happen, the federal government needs to go back and take a clearly defined national stance against sexual violence.