Change Has Come To Title IX, But To What End?

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that mandated a campus sex investigation and adjudication scheme designed to assure vindication of the accuser* were rescinded.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.

11 thoughts on “Change Has Come To Title IX, But To What End?

  1. Jim Tyre

    **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.

    Wow, Scott. You caused ABA to fix its egregious error. That’s power! Now, if only you can figure out how to monetize it, causing ABA to fix its other egregious errors could be that exciting new career you’ve been looking for.

      1. B. McLeod

        They aren’t all that separate, and I’m not sure the Journal as such is even a legal entity. Molly McDonough once pointed out in an email that ABA signs all the checks for Journal staff. They are a controlled publication. It is difficult to believe such a total misstatement actually could have been an “error,” and the “correction” likely followed their realization that nobody was being fooled.

        As for the significance of the DeVos pronouncement, it is mainly that DOE still has failed to recognize and address what is really wrong here. As between preponderance and clear-and-convincing, neither is an appropriate standard for campus tribunals trying to adjudicate criminal issues. The battle over the Title IX fiasco will continue in the courts, until such time as DOE either abandons the sexual assault tribunals entirely, or the courts come to a consensus on the due process that must be afforded participants.

      2. B. McLeod

        ABA Journal is part of the larger organization. With the FY 2018 budget cuts, ABA Journal was packed into ABA’s “publishing division.” The ABA President, President-Elect, Treasurer, and House of Delegates chair all sit ex officio on the Board of Editors. For those ABA members who actually pay dues, $5.50 of their annual dues payments are allocated to their ABA Journal subscription.

        1. SHG Post author

          You’re conflating things. They are still the “ABA” Journal, but their operations are separate. And you’ve got to stop turning every mention of them into a diatribe about how awful they are. We get your obsession, but that doesn’t mean you get to hijack every post that mentions the ABA Journal in passing into a harangue about your pet peeve. This is your obsession, not everyone else’s. Want to write about them all day long, start a blog and go for it. I don’t mind you mentioning it occasionally, but the constant hijack attempts go too far.

  2. John Barlycorn.

    Exhaustion is too rich a carberurator to put the hesitant foot in you here, not the marbled rye?

    I doubt 59 in 400 of your readers own a vehicle with a “carburetor”. 323 of 400 probably know what one is.

    5 in 400, 13 year olds do.

    Don’t rape me, if I am a bit off sticking a finger up your ass.

    Question is, why be afraid of a recently opened road, through the twisted uphill? Pedal to the metal!!!

    Granted your readership, doesn’t know what to do with perfect eggs and toast let alone oatmeal. But seriously!

    WtF?!

    Write the woman a letter.

    Not as though you are going to go down on her if she invites you along to elaborate.

    Rumor has it she travels fine.

    Your readers “fumble” when you do. This is not good. Pragmatic up, park your pride find your prostrate next time you can’t even get your cock hard when you just wanna get off.

    P.S. What do you gots in with this here, “quandary”? Hundred thousand words, probably more? Poof…real shot afoot. Square it up.

    Postage counts. Betsy is.

    I would go down on her, twice!

    Man up and eat some sanguine fun after whatever gets done.

    Who knows what what the morning will bring…

    Get in there!

    https://youtu.be/_ptRLNv6Eck

    I

  3. DHMCarver

    I find the semantics around the standard of proof in these tribunals amusing. I believe one of the articles to which you linked recently claimed preponderance of the evidence was 50.1% chance the accused is responsible — as if something as amorphous as evidence in any instance, let alone these issues of memory-versus-memory, could be that precise. Throwing around such false precision only further confuses the public when weighing these issues. In criminal trials, what constitutes the burden of proof and whether it has been met is amorphous enough. In these tribunals, where lawyers generally are not present, or if present, often cannot speak, the idea that anyone really knows how to balance standards of proof is laughable.

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