Title IX 101

How should schools handle sexual assault cases?

Artwork: caglecartoons.com

By Sarah Sidlow

Education Secretary  Betsy Devos has been busy. Last month, her department announced that it would be calling a mulligan on an Obama-era policy regarding sexual assault on college campuses.

Quick refresher: Title IX of the Education Amendments Act of 1972 is a federal law that basically prohibits sex discrimination in educational institutions that receive federal funding (about 7,000 of them). During his administration, Obama added some new documentation targeting sexual assault on college campuses. It’s called the “dear colleague letter,” and it was issued by the Office for Civil Rights.

It’s not technically law, but it’s a strongly-worded suggestion for how educational institutions should conduct investigations in sexual assault cases—including the recommendation that they use the lowest possible standard of proof in sexual assault cases.

The guidelines used what was called the “preponderance of evidence” standard. It means “the proof need only show that the facts are more likely to be than not so”—basically, if you’re 51 percent sure the person is guilty, then the person is probably guilty.

Supporters of the old guard argue the policy sent a strong message about sexual assault on school campuses; an arena where it has been a persistent problem. They argue that rolling back this guidance will hurt students and create a less safe environment for all.

Others claim this un-doing is another example of a troubling new administrative culture.

“Betsy DeVos and Candice Jackson [head of the civil rights division within the Education Department]’s intentions are clear: to protect those who ‘grab’ by the genitals and brag about it—and make college campuses a safer place for them,” Sofie Karasek, director of education and co-founder of End Rape on Campus, said in a statement.

Many colleges, including The Ohio State University, have made public announcements that they won’t be changing their sexual assault policies, regardless of the new guidance from DeVos.

But there are others who applaud this roll-back.

DeVos has openly criticized Obama’s “dear colleague” guidelines in the past, arguing that they were presented as a scare tactic used against schools who rely on federal funding, and that they often lead schools to violate due process in sexual assault cases. The preponderance of evidence standard, she argues, makes it pretty dang hard for accused perpetrators to be judged fairly. So she’s taking the letter back.

To many, it’s only fair for sexual assault cases to be handled uniformly across the board. Meaning: if you’re accused of sexually assaulting someone on a college campus, you deserve the same legal treatment you would receive if you were accused of committing the crime anywhere else—which comes with a much higher standard of evidence. The hope is that more fair procedures will only lead to more fair outcomes.

Reach Dayton City Paper forum moderator Sarah Sidlow at SarahSidlow@DaytonCityPaper.com.


Question of the Week:Should campus sexual assault cases be handled differently than those off-campus?


 Campus myths

Look at the facts

By Ben Tomkins

Any conversation about sexual assault on college campuses must begin with the destruction of a myth. If the news and public opinion are to be believed, then the grounds and surrounding areas of the average university are some of the most dangerous places in the country for young women. The image of the average male college student is that of a lecherous animal who is positively drooling at the thought of isolating and molesting young, drunk girls in darkened corners of fraternity houses. On paper, one might even be convinced that consolidating a bunch of newly-hatched adults with the mentality and experience of slightly evolved high school seniors is in-and-of-itself a sexual Hunger Games proposition.

However, the facts speak for themselves: according to a major study conducted by the US Justice Department (2014), college-age women are 20% less likely to be the victim of sexual violence than their non-matriculated counterparts.

I can already hear the rumblings about underreporting, but there is no reason whatsoever to believe that girls are more likely to report sexual assault if they aren’t in school. While it is true that claims of sexual assault on college campuses are on the rise, this is nearly universally attributed to an increase in reporting, which leads one to the inescapable conclusion that the culture surrounding women on campus is moving in the right direction, and one that is already well ahead of the general public.

We must be careful not to allow the imperfections and failings of both people and systems to lead us to throw the baby out with the bathwater when it comes to college security and practices. It is likely the fact that administration and security are highly specialized at dealing with their relevant demographic that has produced better-than-average outcomes for college populations regarding sexual violence. Upon walking onto a college campus, one is inundated with literature and posters about sexual health and safety, including encouragement for where and how to report sexual assault. It is addressed in orientations, in classrooms, and as a result it is on the lips and minds of students across the country. There is no comparable initiative outside campus walls.

Furthermore, the oft-maligned campus security elements are not a collection of Keystone Cops and academy dropouts. Their approach and tactics are specifically tailored to promote prevention and healthy choices amongst college kids, and include how to handle sexual assault reporting and management of delicate situations involving young people. The media constantly reminds us that administration is highly motivated to demonstrate low sexual assault statistics to promote enrollment, but to assume that this means they must be maliciously dismissing victims and actively trying to create a culture of silence is absurd. They are not perfect people, and it may be that there are a few administrators out there who have a warped opinion of what is in the best interest of their institution, but the fact remains that it is a billion times more desirable (that is a conservative estimate) to have a safe campus than it is to downplay sexual assault.

In an ideal world, it would be nice if sexual assault cases could be handled off campus as well as they are on campus. Unfortunately, in practice, those in the non-college world are comparatively underserved. Campus police have the distinct advantage of being able to specialize their entire force, as well as get to know the community they serve much more intimately. The average civil police force doesn’t have that luxury. They have to deal with every age and socioeconomic demographic, and usually without advance notification.

Yes, campus safety can always be improved, but generally speaking, the grounds of our nation’s educational institutions are very safe and open places. It is a colossal mischaracterization perpetrated by alt-Right media organizations that universities are full of easily-triggered, intellectually fragile Snowflakes and radical feminist who are accusing men of rape because they looked in the direction of a woman standing on the curb before stepping out into a busy intersection. For a simple thought experiment, ask yourself how many college students you know who actually reflect that image. Excluding YouTube, the answer is probably “zero”.

I come into contact with more college-aged women on a daily basis than most people who don’t go to or work at a university, and in general they are feeling safer and more empowered than ever before. Moreover, they know that they have the increasing support of a generation of better-educated young men than any previous generation ever has. Everyone can always do better when it comes to sexual assault, and if non-campus police were able to meet the standard for young women that campus security strives for, so much the better.

Ben Tomkins is a violinist, teacher, journalist, and critically acclaimed composer currently living in Denver, Colorado. He hates stupidity and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of an issue. For more of his work, visit HillofAthens.com. Reach him at BenTomkins@DaytonCityPaper.com.


Government Inaction

Students deserve better

By Tim Smith

There’s no doubt that sexual assaults on college campuses is a serious problem, and it’s becoming more widespread. According to a recent study by the Rape, Abuse & Incest National Network (RAINN), 11.2% of all undergraduate and graduate students experience rape or sexual assault through physical force, violence, or incapacitation (such as alcohol or drugs). The study also noted that 10% of campus assault victims don’t report their attacks because they feel that nothing will be done, and 20% don’t report out of fear of reprisal.

Colleges have a responsibility to their students and faculty to be pro-active when it comes to preventing sexual violence, and to provide a safe environment. The Department of Education has provided guidelines to help make that possible.

Title IX of the United States Constitution was enacted in 1972. It states, in part: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

In 2011, the Office of Civil Rights, in response to charges that schools have poorly supported women who have complained of sexual assault, tweaked Title IX with a “Dear Colleague” letter to schools receiving Federal funding. The letter advised academic institutions that they must make changes to how they handle sexual assault allegations, including lowering the standard of proof, setting a time limit of 60 days to respond to allegations, and limiting the accused’s rights to cross-examine the complainant. The OCR also included the threat to withdraw Federal funding to schools that do not comply because their actions could be construed as a form of discrimination, and possibly a violation of civil rights under Title IX.

Advocacy groups applauded the changes while legal experts raised concerns about risks of abuses against the accused. The Department of Education’s approach toward adjudicating sexual assault accusations has been criticized for failing to consider the possibility of false accusations, mistaken identity, or errors by investigators. Critics claim that the “preponderance of the evidence” standard required by Title IX is not an appropriate basis for determining guilt or innocence. Campus hearings have also been criticized for failing to provide many of the due process protections that the United States Constitution guarantees in criminal trials, such as the right to be represented by an attorney and the right to cross-examine witnesses.

And now, along comes Betsy DeVos, President Trump’s dubious choice for Secretary of Education, to change the rules and muddy the waters. On September 22, she eliminated some of the Obama-era mandates from the Dear Colleague letter. The rescinded guidelines included having a low standard of proof to establish guilt, the 60-day investigation period, and not permitting mediation between involved parties. Many colleges have already stated that they’ll continue to follow the previous guidelines, but should they be handling these investigations in the first place?

Institutions of higher learning, whether they receive Federal funding or not, have a legal, ethical, and moral obligation to report allegations of sexual assault to the police. An initial investigation into such a serious charge should not be handled by a campus faculty committee, security officer, or a peer review board. If they want to conduct an internal review of sexual misconduct allegations, they should apply the same standards as those used in the criminal justice system.

Colleges and universities like to think that they exist in their own universe, and should be allowed to self-govern. Code of conduct policies is fine if they’re uniformly enforced, but in the real world, if there’s an accusation of sexual assault, it is investigated by the police. The RAINN study quoted above revealed that only 70% of campus law enforcement agencies in the U.S. have memorandums of understanding with local law enforcement in regards to reporting sexual assaults.

The actions of Secretary DeVos only quantify her unfitness to hold a Cabinet-level position. They also reflect her boss’s cavalier attitude toward women in particular, and civil rights in general. Her recent decision almost suggests that the involved parties should just say they’re sorry, shake hands, and forget about it.

Don’t the victims deserve something better than that?

Tim Smith is an award-winning, bestselling author. Reach DCP freelance writer Tim Smith at TimSmith@DaytonCityPaper.com. 

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Ben Tomkins
Ben Tomkins is a violinist, teacher, journalist and critically acclaimed composer currently living in Denver, Colorado. He hates stupidity and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of an issue. Reach Ben Tomkins at BenTomkins@DaytonCityPaper.com.

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