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Beyond the Criminal Discourse in Title IX Procedures

First published October 26 2017 in Anthropology News.

On September 22, 2017, Secretary of Education Betsy DeVos rolled back the Title IX guidelines implemented under the Obama presidency. The shocking implications of this are too numerous for this short article, however, I want bring to the fore one key concern: changes to what constitutes as the standard of proof for a violation in sexual harassment policies. Whereas Obama-era guidelines lowered the standard of sexual harassment to include the creation of a hostile work environment, DeVos Devos raised them. Her changes arguably provide due process only for those accused of the most egregious crimes. However, both of these approaches employ punitive measures to address sexual harassment on campus, and they are both insufficient and harmful.

Title IX guidelines, first established in 1972, compel educational institutions to establish policies and structures that ensure that sexual discrimination does not violate equal opportunity to public education on the basis of sex. Title IX works by tying rights to money: In order to receive federal aid, institutions must appoint Title IX officers, make their policies of non-discrimination public, establish grievance procedures, and investigate complaints in a timely manner.

 In a mere two-pages DeVos, discarded the well-known 2011 Dear Colleague Letter (and its accompanying 53-page question/answer guide) that identified sexual harassment in schools as a civil rights issue.

Devos’ rollback came two weeks after she charged that the rights of those accused of sexual harassment or assault have been systemically abused under the Obama-era Title IX guidelines. “One [sexual] assault is one too many, one aggressive act of harassment is one too many,” she said, “One person denied due process is one too many.” Devos pointed to innocent students whose lives were ruined under Obama-era amendments that encouraged Title IX investigators to employ a preponderance-of-the-evidence standard. This meant that Title IX investigators had to prove that “it is more likely than not that sexual harassment or violence occurred” (Dear Colleague 2011, 11).

In a mere two-pages DeVos, discarded the well-known 2011 Dear Colleague Letter (and its accompanying 53-page question/answer guide) that identified sexual harassment in schools as a civil rights issue. In this short document, DeVos rescinded guidelines that discouraged cross-examination, forbade the use of law-enforcement authorities to resolve complaints, and that allowed for complainants to appeal “not-guilty findings.” In effect, it defined Title IX through the lens of criminal procedures.

We are on a misguided path when punitive measures are the primary means by which to establish equal opportunity.

While not based on criminality, Obama-era guidelines also maintained an emphasis on punitive measures for addressing sexual harassment. The first few pages of the 2011 Dear Colleague letter described a sobering climate, citing many statistics, including that 20 percent of women and 6 percent of men are victims of attempted or completed sexual assault in college. It also states that sexual harassment generally creates a hostile environment and that it can interfere with a students’ ability to participate in educational programs, constituting a violation of Title IX legislation. Title IX investigators were thus encouraged to employ the preponderance-of-evidence standard and a variety of methods to determine a 51 percent likelihood that a policy violation happened, including character references and analyses of narrative consistency.

Since then, Obama-era standards received widespread condemnation from civil liberties groups that advocate for a higher standard of proof. The Foundation for Individual Rights in Education, for example, argued that Obama’s policies both neglect freedom of speech rights and violate the due process of those accused of criminal activities. They argued that at its worst, these procedures easily enabled life-altering damages, including college expulsion and defamation. New Trump-era regulations state that educational programs can choose a standard of proof as long as they are consistent with all student disciplinary procedures, meaning that many universities are now facing difficult structure and life-changing decisions ahead.

Boris Thaser/Flickr CC BY 2.0

What is missing from this discourse is that most claims of sexual harassment are not criminal acts. This includes brushing up against someone’s body, touching another person inappropriately, stalking, and using a position of authority to pressure someone into having sex. Sexual harassment can also be mundane and severe enough to create a hostile environment, such as through language. In the last two years, I became aware of several Title IX complaints filed with my institution, and none of these rose to a standard of criminality in California. These were complaints against faculty for making sexist and homophobic commentary; against three different students for stalking a graduate student, a female faculty member, and a male faculty member (all distinct cases); and one more egregious case of a faculty member propositioning a graduate student for a sexual, extramarital affair.

Creating a framework in which criminality is the standard effectively reserves Title IX for only the most egregious cases of sexual violence. This goes against the spirit of Title IX. When she drafted the Title IX amendment to the Higher Education Act, Representative Patsy Mink sought to create equal opportunities for women in education by requiring federally funded education programs to allow women to participate equally. This meant post-secondary schools and departments across the nation that historically denied admission to women now had to admit them. Athletics programs had to allocate equal funding to male and female athletes. Financial aid could not exclude women as recipients of scholarship funds. Title IX was never exclusively about criminality. It is about equal opportunity.

We are on a misguided path when punitive measures are the primary means by which to establish equal opportunity. According to legal anthropologist, Annelise Riles (2004), the law is often employed for its instrumentality: as a means to an end that reproduces, in effect, more means and ends. With recent Title IX procedural changes, Trump and Obama guidelines have proven this to be the case, revealing that conflicting goals produce methods that are at odds with one another. I suggest that we question Title IX’s procedures, means, and ends by recasting the question of how to produce educational environments that allow for equal participation. We must do this in such a way that moves past a discourse of discipline and punishment, and towards the transformation of campus cultures that we so desperately need. With adequate training and tools restorative justice is certainly a good place to start. With sufficient student, faculty, and staff involvement, we can work towards addressing sexual harassment and assault before it starts.

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About luzildac

Ph.D. Candidate at UC Irvine, Department of Anthropology

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