Nearly two weeks ago, Education Secretary Betsy DeVos announced that she would be opening up Title IX for “notice-and-comment.” This is the first step on the way to rescinding the 2011 guidance on the law, known as the “Dear Colleague” Letter, issued by the Obama administration. In her speech announcing this change, DeVos declared that the 2011 guidance was a clear overreach of executive power, arguing that it worked to protect survivors at the expense of the accused. In making this argument, she cited several stories of accused students who were denied due process in Title IX adjudications, illustrating how the “failed” process had destroyed their lives. However, it was made abundantly clear during Secretary DeVos’ speech that she has a serious misunderstanding of what Title IX is, what the “Dear Colleague” letter actually says and how sexual misconduct investigations really impact survivors on college campuses.
In its broadest terms, Title IX is a federal law that bans sex discrimination in educational institutions that receive federal money. Through Supreme Court decisions and guidance from the Department of Education, the law has been given a broad scope to cover sexual harassment and sexual violence. While the law is seemingly straightforward, it was unclear to many universities to what extent they had to complete investigations into sexual violence; as a result, schools frequently failed to comply with their Title IX obligations. For example, according to the American Association of University Women, 91 percent of college campuses were reporting zero incidents of rape as recently as 2014. Because we know that sexual violence is occurring on every campus, these numbers are a clear indication that these institutions were either discouraging students from reporting or actively covering up reports.
The 2011 “Dear Colleague” letter was released in this context of noncompliance. The letter served as a directive to colleges and universities, informing them of guidelines they needed to follow in cases of sexual misconduct in order to comply with Title IX. For survivors, this directive was incredibly meaningful; it showed a clear and active acknowledgement from the administration that sexual misconduct cannot be tolerated, and that the voices of survivors who had long demanded accountability from their institutions were finally being heard. However, Betsy DeVos, and many others in the Trump administration, don’t see it that way.
Instead of prioritizing survivors, DeVos is much more concerned with protecting the perpetrators of sexual violence, and has blatantly ignored the facts to further this agenda. In her speech, DeVos even went so far as to equate the experiences of survivors with the experiences of the accused—a rhetorical move that clearly misunderstands the power imbalances inherent to sexual misconduct and intimate partner violence. By setting up a parallel between the injustice experienced by survivors and those experienced by “victims of due process,” DeVos lays the groundwork for an argument of misunderstandings, vague accusations and even blatant lies.
For example, DeVos claims that Title IX isn’t working because the administrators tasked with adjudicating investigations are not being properly trained. However, this is in clear violation of the law, as the “Dear Colleague” letter explicitly mandates that investigations use impartial, trained investigators to handle disciplinary proceedings. DeVos also discussed an example of a student who was not notified that he had been accused of sexual misconduct until after he was suspended, and who was denied counsel by his administration. Again, this is a violation of the existing law: the “Dear Colleague” letter mandates opportunities for both parties to call witnesses and use advisers, and requires timely notifications about the process for accused students. The letter even goes so far as to explicitly state that schools “must provide due process to the alleged perpetrator.”
Ultimately, the cases DeVos cites are examples of administrations not abiding by Title IX, not of a failure of Title IX itself. If anything, DeVos’s speech only serves as further evidence that the Department of Education needs to be offering guidance like the “Dear Colleague” letter in order to enforce the proper adjudication of the existing law. We don’t need a new guidanceĕ—we need to do a better job of enforcing what’s already there.
As the president of SAAFE (Sexual Assault Awareness For Everyone) here at Wellesley, I am incredibly frustrated that the woman charged with enforcing Title IX has seemingly never read the law. But DeVos’s arguments about Title IX aren’t new; in fact, they are the very same arguments that SAAFE clearly fought back against last semester when Laura Kipnis came to campus. Through my work with SAAFE over the past several months, I have continuously been faced with the same question: how can survivors count on this administration to ensure we receive justice? Unfortunately, it seems that the answer is that we can’t. But survivors on this campus fought back against this dangerous rhetoric last semester, and we can and will do it again. If the Department of Education is more concerned with protecting perpetrators than with enforcing the law, then we’ll hold our institutions accountable ourselves.