Title IX had to change.
Whether you’re a full blown Men’s Rights Activist or a card carrying feminist, Title IX under Obama-era guidelines failed you. Rather than fixing a broken system, they simply expanded it. Education Secretary Betsy DeVos’ rewrite of the guidelines are long overdue, but they’re far from perfect.
The most welcome reform by DeVos is also the most controversial: bringing back cross-examination of witnesses. Left-wing critics of DeVos’ reform have argued that cross-examining the accuser would retraumatize a victim, the same defense used by the Obama administration to effectively banned it. Not only is this logic not backed by science, but it also impedes justice for victims.
Sex crimes often lack meaningful material evidence. College campuses often don’t have health centers equipped to administer rape kits, and witnesses can often be sparse. Cross-examining a guilty rapist could result in him slipping up on his alibi, crucially clearing the evidentiary standard.
Furthermore, the cross-examination doesn’t even have to occur with the accuser and the accused in the same room. The questioning can be done by a lawyer or adviser.
Also great is ensuring both parties have “equal opportunity to inspect and review evidence obtained” by the investigators and the eradication of Obama’s preferred single investigator model, in which a single campus bureaucrat acts as judge, jury, executioner, and attorney. Now multiple people must run the process, meaning there’s less risk of a single biased person rigging the system in either direction.
Now comes the complicated part.
The Department of Education has narrowed the scope of adjudication to cover only “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” This part is excellent because it means that Title IX adjudication will apply to sexual assault and harassment, not policing free speech. However, the Department has also narrowed Title IX’s jurisdiction in a way that could legitimately harm a student’s right to an unfettered education.
Explicitly, Title IX “prohibits only discrimination that has the effect of denying access to the recipient’s educational program or activities.” A rape victim forced to live next to or attend courses with her rapist effectively impedes her right to an equal education. Despite the rhetoric of justice used by the Left to describe Title IX, it remains a functionally utilitarian tool. At a minimum, schools still need to adjudicate instances of rape and harassment insofar that victims aren’t forced to interact with their assailants. Title IX offices have the power to issue stay-away orders and punish retaliation, so if a student files an assault complaint against another student, the accused student cannot further harass or intimidate the accuser.
However, DeVos has now called for Title IX offices to only adjudicate cases happening on campus or at campus events. This is the ugliest part of the rewrite.
Nearly nine in 10 college students live off-campus. Conservatively speaking, this would translate to a majority of “campus” rapes occurring off-campus. Even if a student who was raped off-campus took the matter to the police, they might still be forced to remain in the same classes or face deliberate and direct contact with their assailant. Worse yet, if two students lived on-campus but a rape occurred off-campus, say, at a house party, a student could hypothetically be forced to continue to live next door to his or her rapist, with no hopes of immediate recourse. If a student has to live in a dorm or attend a class with her rapist, her right to an education is inherently impeded.
Overall, the new Title IX rules are a mixed bag. But Title IX before was a disaster.
Even implemented perfectly under the Obama-era guidelines, Title IX could fail based purely on university staffing. At USC, which spent multiple years under federal investigation for violating Title IX enforcement and faced multiple lawsuits from accused students, appeals are sent to the vice president for Student Affairs, Ainsley Carry. If you recognize that name, it’s because he made national news for brokering a hush money payout to Dr. George Tyndall, the campus gynecologist credibly accused of molesting hundreds of female students over the course of three decades.
Luckily, these new guidelines ensure fairness to both parties by detailing clear rights, rules, and procedure — that is, when they allow adjudication at all.
