Ending Title IX Guidance Isn’t Just Evil—It’s Profoundly Stupid

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Abby Honold would never have graduated without Title IX.

In 2014, when she was a junior at the University of Minnesota, Abby was raped by another student. She did everything a survivor is “supposed” to do. She called 911 immediately, went to a hospital for a rape kit, and got medical evidence documenting her extensive injuries: scratches all over her body, bite marks, and a torn frenulum from her attacker violently shoving his fingers down her throat, according to reports. After she reported the assault to police, Abby says, her assigned detective dismissively told her, “Kids are into kinky shit these days.” Her case was later closed, and that was it—no investigation, no charges, nothing.

Abby was struggling to succeed in school. How was she supposed to make it to her classes when she was having panic attacks and could see her rapist on campus at any moment? So she reported the assault to the University of Minnesota—and they expelled him. Abby told me that the expulsion made it possible for her to go back to school and graduate. “I honestly don’t think I ever would’ve gone back to campus,” she said, “if I had to worry about seeing the man who raped me.”

Students arriving on campus this fall may not get the support Abby did. In 2011, the Education Department issued Title IX guidance, clarifying schools’ longstanding obligations under federal law to promptly and equitably investigate sexual assault on campus. Under Title IX, the guidance explains, schools are required to protect students from sexual harassment and assault, which make campuses hostile environments for survivors, who are overwhelmingly likely to be women. Thanks to that guidance, schools across the country finally began taking sexual assault seriously.

This week, Education Secretary Betsy DeVos announced that she’s rescinding it, putting students like Abby at risk. In a speech on Thursday, DeVos said that current system is a “failed” one, which “has clearly pushed schools to overreach.” She argued that “Washington has burdened schools with” complicated guidelines, and that the current system is unfair to the accused.

She’s wrong on both counts. Protecting survivors isn’t “overreach.” It’s what it looks like when the Department of Education does its job and enforces students’ civil rights. And the Obama administration’s Title IX guidance doesn’t only allow fair process for accused students—it requires it.

As an organizer with Know Your IX, a national campaign fighting sexual violence in schools, I hear from young people every day whose access to education has been disrupted by gender-based violence. Student survivors see their grades fall, and they’re forced to drop classes, take long leaves of absence, or even leave school entirely. Survivors can’t focus on learning if their rapist sits could walk into the library at any moment, or if he sits next to them in calculus class. Rape is always a horrible act of violence, and when it happens in college, it can have the compounding harm of pushing a survivor out of the classroom—especially when their school does nothing about it.

Until 2011, when the Obama Department of Education released guidance outlining sexual assault survivors’ rights, schools routinely flouted their Title IX obligations. As recently as 2014, 91 percent of college campuses reported zero incidents of rape. That’s not because those campuses were magically sexual-violence-free; in reality, one in five undergraduate women experiences sexual violence on campus. Having zero reported rates is a clear indication that schools are systematically discouraging survivors from come forward, or covering it up when we do. In my own experience as an advocate, I’ve heard from survivors who reported sexual assault, only to be told by school officials that they should “take a semester off” and come back when their perpetrators graduate; that they should just forgive and pray for their rapists, in lieu of an investigation; or that they should transfer to an “alternative school” where they’d get as little as six hours of instruction a week. These are the students DeVos is turning her back on.

There’s another group of students DeVos is far more eager to defend: the accused. The Secretary spent much of her speech arguing that the Title IX guidance has created investigations that are unfair to students who are accused to sexual misconduct. I want to be clear: School discipline absolutely must be procedurally fair for both parties, and neither survivors’ advocates nor the Obama Administration have ever denied that.

The Dear Colleague Letter doesn’t require schools to treat accused students unfairly. In reality, the guidance affords students accused of sexual violence with more procedural rights than students accused of any other code of conduct violation (like, say, physical assault), and more than the Due Process Clause of the Constitution otherwise provides students in campus discipline.

DeVos shared anecdotes from accused students who were grossly failed by their schools. Those examples are travesties, but many of them are also prohibited by the very guidance that she’s trying to repeal. DeVos told the story of a student whose school failed to notify him that he was accused of sexual violence, ignoring the fact that the Dear Colleague Letter requires notice. DeVos talked about a student whose school didn’t let him have access to evidence, yet the guidance explicitly requires both parties have “access to any information that will be used at the hearing.” DeVos criticized schools that don’t offer appeals even though the guidance encourages them, and suggested it requires gag orders of victims and accused students, which it doesn’t. Either DeVos hasn’t read the Title IX guidance, or she’s deliberately misrepresenting it.

The accounts DeVos cited aren’t reasons to repeal the Title IX guidance: They’re reasons to enforce it.

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