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Do Proposed Title IX Rules Protect the Accused or the Accuser?

Analyzing the Proposed Rules for Sexual Harassment/Assault Allegations on College Campuses

Education Secretary Betsy DeVos made news last week when she released a rewrite of rules under Title IX governing campus sexual harassment and sexual assault allegations, narrowing the cases schools must investigate and giving the accused more rights. The proposal is not balanced, favoring the rights of the accused to the detriment of the accuser. Yes, the accused should be considered innocent unless proven guilty. But it’s the process that determines guilt or innocence that concerns me.

No doubt the new rules are a reaction to the #MeToo movement and are a good thing but they fail to protect the vulnerable victim of sexual harassment and sexual assault. Those who are against the proposals, including women’s rights groups, contend the proposed rules would allow assailants and schools to escape responsibility for harassment and assault and would make college campuses less safe for women. Supporters claim it restores balance in the system that had gone too far in favor of the accusers. Sexual harassment

Concerns About the Proposed Rules

What’s wrong with the proposal? Most likely fewer allegations would be considered sexual harassment and schools would be responsible only for investigating incidents that are part of campus programs and activities and that were properly reported. Think about it. What does part of campus programs and activities mean? What if the assault happens in the dorms? Is that part of college programs and activities?

Moreover, the proposed rules also limit the circumstances that would mandate a school’s response to an incident. The school must have “actual knowledge” of the allegations. Reportedly, this means the incident must have been reported to “an official with authority to take corrective action,” such as the Title IX coordinator. This provides plausible deniability for colleges to say the student didn’t go through the right process. It opens the door to alleged technical violations that would be difficult to affirm or deny since much of the information about the incident is kept confidential.

John B. King, Jr., who served as education secretary in the Obama administration said: “The most divisive aspect of the proposal may be allowing attorneys for the accused to cross-examine accusers.” Advocates for the change claim it’s needed because of bias by college administrators against the accused. I doubt that is true having taught for 30+ years at the college level and closely following these kinds of incidents and how they play out.

Support for the Proposal

What’s good in the proposal? The investigations required to be made must follow due- process procedures, including a presumption of innocence, the opportunity to present witnesses and evidence, and the right to an adviser or attorney at all phases of the process (but see below for clarification). This protects the rights of both the accuser and the accused and is a good thing.

Finally, schools would be allowed to choose the standard they will use between “preponderance of the evidence” or the higher bar of “clear and convincing evidence.” But a school may not use the lower standards if it relies on the higher one for allegations against employees, including faculty members. This seems fair, equating abuses of students with those against faculty and staff with respect to due process.

Why Sexual Assault is Increasing

Violence against women on college campuses has increased in recent years for the same reason violence has increased in our society. Today's students grow up viewing gratuitous violence on television, in movies, video games, and in social media and these collective influences de-sensitize students to right and wrong. The lines become blurred because young people come to believe what they are watching is something that is "normal" in society.

The problem goes much deeper and is born out of a sense that all ethics is situational. Young college males come to believe that it is OK to take advantage of a woman who has been drinking excessively (and may not be able to make an informed choice) because she is drunk and obviously wants to have a good time. While the male student would not think of attacking a women in the street, he may not hesitate to assault a female student too drunk to know better because the situation allows for it.

As a college professor I’ve observed the problem first hand. Everyone wants to party and have a good time. Most of the kids are away from home for the first time. Peer pressure influences otherwise good (i.e., ethical) kids to do something wrong. The notion that everyone does it seems to overcome clear thinking. Before long, the campus is dealing with a problem it is not equipped to deal with. So how does it react? A campus-wide session is held to explain to everyone why such behavior can't be tolerated and then everyone goes back to business as usual, until the next episode of assault on campus.

In this regard it reminds me of violent shootings in our schools or in other areas of society. An event occurs; some die others are injured; we all are shocked; discussions take place about how to reduce such occurrences in the future; and we debate stronger gun controls. Nothing happens. A week or two – or month or two – later the next incident occurs.

Blog posted by Steven Mintz, aka Ethics Sage, on November 19, 2018. Visit Steve’s website and sign up for his newsletter. Follow him on Facebook and Like his page. And, thanks for reading!