Digging Deep Into Possible Title IX Changes

Dec 20, 2017

The Mathewson-IGT Knowledge Center on the campus of the University of Nevada, Reno.
Credit Alexa Ard

 In September, Education Secretary Betsy DeVos announced major changes to how colleges and universities handle sexual assault. But long-term changes remain unclear, even three months after the announcement. Our news director Michelle Billman sat down with reporter Jacob Solis to sort this all out.

Michelle Billman: So back in September, Betsy DeVos issued this new guidance. How does it actually change the rules that were laid out by the Obama administration and why?

Jacob Solis: So DeVos has said the previous rules don’t do a good job of providing due process, especially for people who are accused of rape and might be innocent. Now the data around false reporting is pretty limited. We know it’s something that does happen, but we really don’t know how often. We do know it’s somewhere between 2 percent and 10 percent, but getting data on that can be difficult because oftentimes reports can be labeled false for reasons that aren’t necessarily someone lying about their assault.

The new temporary guidance changes is just a 7 page Question & Answer document that replaces two things: the Dear Colleague letter from 2011, and a 2014 Q&A that added more specific guidelines.

Of things that changed, perhaps most important is the evidence standard required by the Education Department and its Office for Civil Rights. Now instead of mandating preponderance, they allow schools to use either preponderance or clear and convincing evidence.

So explain that a little bit, what are those standards?

So a preponderance is basically just weighing how much evidence is on either side of a case, and then deciding for the side with more evidence. It’s 51 percent to 49 percent, essentially.

Clear and convincing evidence is sort of an in-between standard between preponderance and “beyond a reasonable doubt,” which is used for criminal trials. To show clear and convincing evidence, you essentially need to show that something is substantially more likely than not to be true.

Clear and convincing has been endorsed as a standard by the American College of Trial Lawyers, but it’s also been called too vague by the American Bar Association. So not a ton of consensus other than a general agreement that preponderance probably isn’t due process enough.

How are colleges and universities responding to the change?

Very carefully.

UNR is in a bit of a unique position because, from a Title IX perspective, not much changed after the introduction of the Dear Colleague letter because much of the changes prescribed by the letter were already in place   So, even with the new guidance, they’re still yet to change anything and say they won’t change anything unless the Education Department mandates that change.

And the threat of non-compliance is still a very real thing. Since 2011, when the Dear Colleague rules were put in place, the Office of Civil Rights has opened 450 investigations into colleges and universities mishandling Title IX investigations, and about 350 of those investigations are still active. And for its part, UNR, at least since 2011, has not been investigated.

I should say, too, that most of those investigations were not initiated by a respondent, which is the person being accused, but by someone who felt their case was not being adequately investigated by their Title IX office.

And that’s a serious charge, because federal funding for a university is tied to Title IX, which means any violations of Title IX policy could put that funding in jeopardy.

And how are victims and victim advocates responding to all this?

It depends who you ask. I talked to a victim for this story, Brooke, who was sexually assaulted twice during her time at UNR. She wasn’t too hopeful that DeVos’s new rules are going to change things for the better, especially when it comes to alleged false reporting.

She says: “It’s not as black and as white as a woman goes and says ‘this happened,’ and the assaulter gets a guilty verdict. No, there’s still a massive trial, and Betsy Devos is trying to further discredit women’s voices from the already deeply marginalized position that they are in.”

Brooke wasn’t happy with the Obama rules either. She said there was still plenty of room for victim shaming and victim blaming.

The two victim advocates I spoke to were also fairly skeptical of the changes, but if you compare the environment at UNR -- which hasn’t been investigated by the Education Department since the changes in 2011 -- to a place like Cornell, which has been investigated six times in six years, there are certainly plenty of administrators and victims and other people tied to this issue who are definitely pleased that the Education Department is finally making these changes.

Jacob Solis is a senior at the Reynolds School of Journalism.

 

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