It is time for us to realize the cluster foxtrot that is Title IX’s approach for dealing with sexual misconduct on campuses. One glaring issue with using Title IX to stop campus rape is that it’s not an anti-rape law, it’s an anti-discrimination code. This means that if a student makes a claim of rape under Title IX, the accusation isn’t a claim against their rapist, it’s an allegation of gender discrimination levied at an institution.
This is a bizarre, roundabout approach for protecting victims. In addition, threatening federal funding gives schools an incentive to prioritize methods to minimize liability rather than meaningful policy that works to end assault. Furthermore, expulsion from school is a radically inadequate punishment for rape and undermines the legitimacy for the fight against rape culture. Allowing rapists to walk free after a closed-door investigation, sealed under confidentiality rules, paradoxically reinforces the reasons men thought they could rape women with little-to-no consequences in the first place. Rape culture extends to all sectors of society. Merely focusing on Title IX instead of developing effective anti-rape laws only protects some victims at the expense of those outside the ivory tower of academia.
No matter how inconvenient and uncomfortable, we must confront the question: why do so many of us think Title IX is worth keeping, fixing, or defending?
In 2011, Assistant Secretary of Education Russlyn Ali sent out her infamous “Dear Colleague” letter. The letter concerned a 1972 law forbidding gender discrimination in federally funded education systems called Title IX. Prior to the letter, Title IX was mostly associated with gender equity in athletic department funding and access. This letter expanded Title IX to include sexual misconduct with the respectable argument that gender equality cannot exist in higher education if students are fearful for their safety or forced to work in a hostile environment where they are likely to experience sexual assault and/or harassment. The main message was that institutions must take campus sexual misconduct seriously or risk losing federal funding. Nothing was said about the rights of the accused, or anything specific about procedural requirements in general.
This lack of clarification means Title IX procedures vary drastically between institutions. Such a high level of autonomy allowed systems that managed to be condemned as both unfair to the accuser and the accused to be created. Title IX wasn’t meant to create a structure by which criminal guilt or innocence could be decided, though it is being used as such and, consequently, people are losing faith in the system as it exists. The visibility of [sexual assault scandal or something of the like] causes public outcry and, subsequently, reform in the criminal justice system. The entire Title IX process happens in complete secrecy, behind closed-doors.
Last November, Betsy DeVos and the Department of Education caused mass outcry from anti-rape activists over her notice of proposed rule to amend regulations implementing Title IX. For new proposals to become legally binding, the department must go through a “notice-and-comment” process whereby the public can tell the government their opinion on the opposed issue online so they can pretend to consider it (this inspired the hashtags #StopBetsy and #HandsOffIX). Activists are saying that the new additions of due process to Title IX will make schools more dangerous for victims, and make it “incredibly easy to get away with sexual violence,” some have gone as far as to say that DeVos is “encouraging, even requiring schools to be complicit in sexual harassment & violence.”
The rules governing sexual assault adjudication under Title IX were justified by the notion that that certain elements of due process must be disregarded to prevent intimidation or trauma. Although this idea is dignified on paper, putting these words to action has destined both accusers and the accused to walk away feeling wronged. Due process is just as beneficial to the accused as it is to the accuser. The point of due process is to ensure people that the justice system will punish the guilty and set the innocent free. The perception of legitimate justice and fairness is as indispensable as its very existence. If no one thinks Title IX hearings are unbiased or fair, the outcomes become meaningless. Title IX, to the extent that it even works—and we have no idea if it has or does—is a lazy attempt to heal a gross, gaping wound in our culture. Its failure to end rape culture and stop the bleeding is tragically the most unsurprising aspect of it all.