The news was big, huge, that the Department of Education under dreaded Betsy DeVos changed everything. The “Dear Colleague” letters of 2011 and 2014, together with the Q&A, that mandated a campus sex investigation and adjudication scheme designed to assure vindication of the accuser* were rescinded. Interim guidelines were issued pending invocation of notice and comment as required by the Administrative Procedures Act and a new Q&A was issued to explain the application of the changes.
So problem solved? Not quite. Certainly not yet. And potentially not at all.
Others will run through the changes, highlighting portions they believe to be most significant, whether accurately or falsely. There will be lies, born of the belief that the cause is so critical that anything that achieves the end is justified. Believers will believe. But the changes don’t change very much. They release colleges from the mandate of what they must address and how they must address it. They do not, however, require change for the most part.
For example, no longer will colleges be required to use the standard of proof mandated by the DoE:
The findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing evidence standard.
This does not require colleges to change the standard of proof to “clear and convincing evidence,” but merely offers them the option**. Will colleges change their standard? They can, but they don’t have to.
Similarly, the Q&A to the guidance now begins by explaining colleges’ responsibility under Title IX to address sexual misconduct at all.
SCHOOLS’ RESPONSIBILITY TO ADDRESS SEXUAL MISCONDUCT
Question 1: What is the nature of a school’s responsibility to address sexual misconduct?
Answer: Whether or not a student files a complaint of alleged sexual misconduct or otherwise asks the school to take action, where the school knows or reasonably should know of an incident of sexual misconduct, the school must take steps to understand what occurred and to respond appropriately. In particular, when sexual misconduct is so severe, persistent, or pervasive as to deny or limit a student’s ability to participate in or benefit from the school’s programs or activities, a hostile environment exists and the school must respond. (Emphasis added.)
Notice the language, “sexual misconduct is so severe, persistent, or pervasive”? This comes from the 2001 guidance issued in the waning hours of the Clinton administration, except it’s a misquote of the Supreme Court’s test in Davis v. Monroe, which is the source of any claim that colleges have a duty under Title IX to be involved in peer-to-peer sexual misconduct at all.
It is not necessary to show an overt, physical deprivation of access to school resources to make out a damages claim for sexual harassment under Title IX, but a plaintiff must show harassment that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victims are effectively denied equal access to an institution’s resources and opportunities. (Emphasis added.)
This fundamentally contradicts the widespread claim that colleges have a place in sex-policing their students. Title IX hasn’t been faced with mission creep, but mission sprint as its tentacles have spread into every aspect of the lives of students to fulfill the slogans and mantras that students have been carefully taught to believe, that no woman should have to endure an unsafe feeling, real, imagined, timely or years later.
Having worked so very hard to inculcate this belief of entitlement, to water down any notion of personal responsibility by the litany of rationalizations for regrettable choices, and having vilified fairness, both fundamental and procedural, as the stripping of protections for presumptive victims, not merely making them vulnerable to rape, but promoting rape, the message will be hard to unsend.
There has been a very effective effort to create a very deceitful impression to students. Faculty and administrators may very well believe that some lives, some feelings, are more valued than others, and entirely willing to sacrifice the unworthy. Will this new guidance change that? While it seeks to send a message of “be fair,” what constitutes “fair” is invariably the sticking point. Is it not fair to destroy rapists’ lives because they’re rapists? Of course, whether they’re rapists is a question that would occur to some, but those would be the people who refuse to believe the survivor, and they are obviously rape apologists and a danger to women. More likely rapists themselves. See how easy that was?
Then there is the bureaucracy, a monstrously large and shockingly well-paid coterie of believers and profiteers off believers, doing everything possible to perpetuate their myth and their revenue stream. Whether they’re sincere or disingenuous, do it for love or money, they will not go quietly into the night.
The scheme crafted by the two prior heads of the DoE OCR has been brilliantly conceived and executed. It’s created a belief that has been widely embraced as absolutely critical to the sexual safety of women, and, make no mistake, it has become a core belief in the Academy that sexual abuse is rampant and must to stopped. Core beliefs don’t disappear overnight. Given the opportunity to persist as they currently do and change in ways that will be perceived as undermining this core belief, change will not come willingly.
On the flip side, individuals and groups that challenge the overreach of OCR, the unlawful mandate of systems calculated to achieve an end at the expense of fairness, may be so naive as to believe the rescission of the old guidance is a victory. I’m not so sanguine. The opportunity for change is now available, but this doesn’t create a desire to change.
This is no tragedy for “survivors.” This is no victory for due process. This is just another battle in the war for the lives of students, and the first casualty of war is innocence.
*To address the cries of new readers, who demand to know the basis for such an assertion, here are the many posts about what was wrong with the old guidance, and the involvement of the DoE OCR in campus sex adjudications at all. Feel free to read as much as you want.
**The ABA Journal’s report of the story originally stated “Now, schools can use a clear and convincing evidence standard—the burden of proof in criminal cases.” Obviously, this was stunningly wrong, and has since been corrected.