UPDATE: On January 17th, the confirmation hearing for Betsy DeVos began, and the nominee publicly discussed her views on Title IX for the first time. In the third hour of the hearing, Senator Murray (WA) asked DeVos if she could promise to not scale back the Office for Civil Rights and to continue to work towards the prevention of campus sexual assault.
DeVos replied that, if confirmed, she would “be looking very closely at how this has been regulated and handled,” and would make decisions “with great sensitivity to those who are victims, and also considering perpetrators as well.”
The Obama administration has championed tougher campus policies against sexual assault, and the University has straightened its policies in this area accordingly. However, as the Trump administration poises to take power, the future of Title IX policies nationwide remains unclear.
In April 2011, the Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague Letter,” which mandated that federally funded universities use a low standard of proof in adjudicating cases of sexual assault. The letter said that schools must use a “more likely than not” standard of proof, which is a lower burden of proof than the current “clear and convincing evidence” standard.
According to a survey of U.S. News & World Report’s top 100 colleges, the University of Chicago had implemented this low “preponderance of evidence” standard by August 2011.
The 2016 GOP platform states, “Whenever reported, [sexual assault] must be promptly investigated by civil authorities and prosecuted in a courtroom, not a faculty lounge. Questions of guilt or innocence must be decided by a judge and jury, with guilt determined beyond a reasonable doubt.”
As Betsy DeVos’s confirmation hearing for Secretary of Education begins and President-elect Trump’s inauguration day nears, the question looms of whether universities will revert to higher standards of proof if the Obama administration’s “Dear Colleague” letter guidance is scrapped.
A University spokesperson did not provide an answer when asked to explain how the University’s policy aligns with the GOP platform. “If anyone chooses to pursue a criminal complaint, the University will still offer support and resources,” wrote News Office spokeswoman Marielle Sainvilus in a statement to The Maroon. “We will continue to work with federal offices to ensure compliance with Title IX and relevant regulations, as part of the University’s broader commitment on these issues.”
What Is Title IX, Exactly?
Title IX was enacted as part of the Education Amendments of 1972. The law states, “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.” A Supreme Court ruling in 1992 established that rape and sexual assault fell under the definition of sex-based discrimination.
What Has Obama Done?
The Obama administration has prioritized ending campus sexual assault over the last eight years.
In 2014, the President launched the “It’s On Us” campaign, which aimed to increase public awareness about sexual assault on campus, and to implore people to intervene when there appears to be a “bad situation.” In that same year, the White House Task Force to Protect Students from Sexual Assault was formed with the mission to research sexual assault prevention policy and advise institutions on the most efficient methods.
The OCR has been responsible for guiding Title IX enforcement policies on campuses. The OCR has the power to investigate “covered entities”—any program that receives federal funds from the Department of Education—that allegedly discriminate against individuals. If a federally-funded university fails to comply with Title IX, the OCR must first attempt to come to a voluntary resolution with the school. If that fails, the OCR may prosecute the institution in a federal court, or take away the institution’s federal funding.
The OCR sends “Dear Colleague” letters which, according to the Department of Education website, “ensure that the general public understands how [decisions in precedent-setting cases] apply to schools, districts, and educational institutions of higher learning.” Although these letters do not carry the full force of the law, they do provide the structure by which the OCR evaluates institutional policies.
But, because “Dear Colleague” letters are merely a set of guidelines, they have a history of being easily withdrawn and overwritten with each passing administration. A 2005 “Dear Colleague” letter that allowed women’s sport interests to be gauged by online surveys, for instance, was withdrawn by the Obama administration in 2010, thereby changing the standards to which universities were held.
In 2011, the OCR released the most influential and controversial letter which defined the “preponderance of evidence” standard for sexual assault proceedings. It mandates that institutions punish defendants who are found to be more likely to have committed the offense than not. “The Supreme Court has applied a preponderance of the evidence standard in civil litigation involving discrimination under Title VII of the Civil Rights Act of 1964,” the letter reads. “Like Title IX, Title VII prohibits discrimination on the basis of sex.” The letter goes on to argue that schools which use higher standards of evidence for Title IX investigations are “inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX.”
If DeVos and the Trump administration decide to change expectations for on-campus Title IX investigations, the change will likely come through the OCR. Neither Trump nor DeVos have spoken explicitly about the administration’s plan for the office.
Last February, the OCR opened two investigations into the University for the potential mishandling of sexual assault or harassment cases. The same month, the University appointed Sarah Wake as the Title IX Coordinator for the University. In May, a Title IX Deputy Coordinator position was created “for managing the day-to-day functions associated with the University’s Title IX and Violence Against Women Act compliance obligations involving students,” according to the job posting.
In 2015, the University launched the UMatter website, which outlines the procedure to follow if a student reports sexual assault, a procedure that utilizes the standards set by the OCR and does not necessarily involve civil authorities.
If a formal complaint is filed with the University, the Associate Dean of Students in the University for Disciplinary Affairs, Jeremy Inabinet, will be responsible for the initial investigation into the situation. At the recommendation of the Associate Dean, the case might be dismissed, resolved informally, or sent to the Faculty Chair of the university-wide Student Disciplinary Committee (SDC). If it is sent to the Faculty Chair, then an SDC hearing will convene.
At the hearing, the Committee “decides, by majority vote and in consideration of all of the information before it, whether it is more likely than not that the respondent’s conduct violated University policies and regulations or breached standards of behavior expected of University students.” If the committee finds the respondent likely to be guilty, then they have the power to punish that individual with anything from a formal warning to, rarely, expulsion. Between 2007 and 2015, only two students were expelled due to sexual misconduct, according to the University Disciplinary Report Archive.
According to Phoenix Survivors Alliance co-leader Meg Dowd, these non-criminal proceedings often satisfy the needs of the individuals involved.
“A lot of people just want small-scale changes, like ‘I don’t want this person living in my dorm,’ or ‘I don’t want this person in my class.’ The police can’t really give you those types of changes,” Dowd said.
The GOP platform also objects to the current interpretation of the word “sex” to include sexual orientation and other categories. According to the platform, this interpretation “impose[s] a social and cultural revolution upon the American people.”
The current University policy on Harassment and Discrimination explicitly protects students from discrimination based on sex, sexual orientation, and gender identity. Sainvilus wrote, “The University remains committed to ensuring a welcoming environment for everyone. Sexual misconduct and all other forms of discriminatory harassment violate the standards of our community and are unacceptable at the University of Chicago.”
In the dearth of any official statements from Trump or DeVos about what the administration realistically plans to do with the OCR, student organizations like the Phoenix Survivors Alliance have turned their energy toward preparing and planning for what may be to come.
“We’re definitely considering what the future will look like,” Dowd said. “We want to make sure that the University won’t regress from its current policies, even if the guidances change in the next few months or years.”