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Last week, United States Secretary of Education Betsy D. DeVos released new regulations for Title IX. According to a statement by DeVos, the changes made to Obama-era guidelines are meant to ensure that schools “act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process.”
But “fair” hardly describes the new rules. DeVos’s new regulations tip the process of filing a formal complaint in favor of the accused, making it unreasonably difficult for survivors of sexual violence to seek justice. Consider three of the changes — as described in the Department of Education’s Title IX Final Rule Overview — from the perspective of survivors attempting to file a complaint next school year.
First, the new rules define “sexual harassment” as “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.”
You are a female student who has recently started doing research for a professor. While you and the professor are friends, they make sexual comments about your body that they do not make about the male students. You feel that these comments are inappropriate and that you have been singled out because of your gender. Many other women in the department report receiving similar comments from the professor.
You approach your university’s Title IX office to file a complaint, but they recommend that you don’t. Under the new regulations, the university could more easily ignore the professor’s behavior until it makes working for them intolerable — until you are forced off the research team. The professor continues to make sexual remarks about your body. You wonder whether their behavior, left unchecked, will eventually reach the severity required to qualify as sexual harassment — whether it will eventually derail your career.
Second, “a school’s grievance process must … Use either the preponderance of the evidence standard or the clear and convincing evidence standard (and use the same standard for formal complaints against students as for formal complaints against employees).”
You are an undergrad who has just woken up in a classmate’s bed. You do not know why your clothes are off; you do not know what you did last night; you do not know when or how you left the party. (You do not know how many drinks you had.) You are scared and confused and you leave as quickly as possible.
Your friends tell you to go to the Title IX office, but you hesitate. You know that your university has chosen to increase the evidence standard for cases of sexual assault and harassment from a “preponderance of” to “clear and convincing” evidence. You are afraid that if you file a complaint, there will not be enough proof and you will have gone through the entire process for nothing. You do not go to the Title IX office to file a complaint or otherwise. Years later, once you have graduated, you wish you had at least tried.
Third, “a school’s grievance process must … hold a live hearing and allow cross-examination by party advisors.”
You are an undergraduate student who has filed a complaint under Title IX concerning a case of sexual assault by one of your classmates. Under the new regulations, you are required to undergo cross-examination by whomever your assailant chooses. They choose their lawyer, who is trained to break down witnesses at the stand. The lawyer asks you question after question: Did you tell your assailant that you wanted to have sex with them? Did you do anything to make them think so? Did you do anything to resist? Why did you kiss them if you didn’t want to have sex? Why didn’t you scream? Is it possible that how you feel about the incident now is not how you felt about it then?
You begin to cry. Every time you try to answer a question, you relive your assault. You aren’t able to answer many because you have trouble remembering the incident. (Survivors often have fragmented or missing memories of sexual violence.) The lawyer uses the gaps in your story to argue that you’re lying. Afterward, you wonder if your assailant’s lawyer is right — are you misremembering what happened? You are even more confused and scared than before. A year later, you still have trouble telling your story because it reminds you of how you felt being questioned by your assailant’s lawyer. Your therapist attributes many of your PTSD symptoms at least partially to the cross-examination.
From just three of the many changes DeVos has made to Title IX protections, it is already clear that the new regulations are meant to shield perpetrators of sexual violence from consequences. Each of these changes creates a new burden on survivors, making the process of filing a formal complaint under Title IX less and less possible. Together they deter survivors from seeking justice. They ensure that sexual violence remains widespread on campuses.
The new regulations are appalling, but they aren’t law yet — not until August 14. We have three months to plan, to prepare, and to organize.
Universities must continue Title IX investigations over the summer and through school closures during the pandemic to ensure that as many cases as possible are concluded before the new regulations go into effect. Then they must commit to protecting survivors to the greatest extent possible under the new guidelines. That means maintaining “preponderance of the evidence” as the standard for cases of sexual misconduct. That means continuing to hold people accountable for sexual misconduct committed off-campus. And, if universities will not commit to these measures, then it is time for students, faculty, and all involved in campus life to fight back — to stand up for our right to a campus free of sexual violence.
Phoebe H. Suh ’22 is a Studies of Women, Gender, and Sexuality concentrator in Winthrop House.
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