The confirmation today of Betsy DeVos as our next Secretary of Education means there is a new sheriff in town. One of her most urgent priorities must be to fix the mess that the Obama administration created concerning sexual assaults on college campuses. Our college campuses are collectively spending more than $1 billion on this issue with precious little to show for it. However well-intentioned the prior administration’s policies may have been, when it comes to Title IX and campus sexual assault, they are not working.
Nearly 300 schools are under investigation over accusations that they have failed to adequately comply with the law. Hundreds of students have been expelled from campuses. Yet, campuses are not demonstrably safer, and students are more confused than ever. Studies show that “awareness” has increased, but no study to-date has shown that increased awareness means increased safety.
The Department of Education is front and center regarding this issue because of what is known as Title IX (of the Education Act of 1972) which simply 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. During the past 35 years, Title IX's scope has been broadened such that "on the basis of sex" is now considered to include sex-based harassment. Such harassment can range from verbal abuse to physical violence.
We all want that harassment to stop and never to take place.
But, the current Title IX set up does far too little to make that a reality and far too much to interfere with the intimate lives college students. It needs to be changed, and under Secretary DeVos, it will be changed.
The Federal Government is conducting most of its Title IX activities under what is known as a "Dear Colleague Letter" (or DCL). The current DCL was issued without public comment, review or appeals in 2011. The Obama Administration treated this "word from on high" as if it were the law itself. It is not. In fact, due to the specious way it was issued and now enforced, it should be considered a massive federal overreach of questionable legal authority. Betsy DeVos refused to commit to continue to enforce the DCL during her confirmation hearing. She was not backing away from enforcing Title IX. She was backing away from being cornered into enforcing an ill-conceived policy which both is not working well and was not legally promulgated. Good for her.
Most of the implementation problems with the DCL are not the result of the document but of how colleges and universities have interpreted how to enforce it. The goal of the document was to cause colleges to identify "hostile environments" - places, contexts, or situations on campus where because of prior or ongoing instances of sex-based harassment a student felt blocked from accessing an offered educational opportunity. Whenever a hostile environment was identified, the college was obligated to eliminate the hostility and take whatever steps it could to prevent its recurrence.
The focus on educational opportunities being blocked was transformed by the DCL and its implementation into a focus on "was an assault committed?" and "if so, then throw the perpetrator off campus, and label him (usually it's a male) as a sexual predator." Title IX offices were transformed into campus prosecutors, hunting for evil doers and expelling them. But, life is not so simple nor so black and white. The specter of being labeled as a sexual predator is being abused by administrators overeager to prove that they are "solving" the campus date rape problem. In reality, these same policies are aggravating the very problem they purport to solve - by confusing students, sending mixed messages, and expending enormous resources on the wrong things.
The notion of consent is part of the problem. Consent is about giving someone permission to do something to you. But sex is about agreeing with someone to engage in activities with you. With you not to you. The preposition "to" implies an assault. The preposition "with" implies a relationship. Our students are confused because continuously consenting to being assaulted is not how they understand sex. In an effort to address what is called the "campus date rape" problem - enforcement of Title IX has labeled normal sexual activity as forbidden assault. The students do not buy it. The threat of being labeled a perp for a supposed violation may have been intended to change behavior - it has not. Instead is has undermined student trust in the "rules" and in the fairness of how they get judged.
The campus date rape problem is about our young people having intimate activities without either first being in a mutually respectful relationship or discussing what kinds of activities both parties are comfortable participating in. Notice I used the word or. Couples in a mutually respectful relationship are seldom going to discuss each and every activity they may engage in. Oft times they may experiment and, yes, have “bad” sex. That is not an assault - it is bad communication or perhaps just a bad experience. Only if one partner crosses a boundary line drawn by the others and then fails to respond in a mutually respectful way can an argument be made that the uncomfortable activity was some form of harassment.
When colleges speak of affirmative consent - the affirmative part is not just the word ‘yes’ but can be satisfied by the two partners mutually affirming their respect for and relationship with the other. Mutual respect is more important than consent. Ideally, respectful mutuality should be the basis of every sexual encounter.
But, college life is seldom ideal. When prospective partners who are not in a mutually respectful relationship (e.g. they just met at the bar) agree to “hookup,” it is essential that each inquires about the boundaries and limits of what is acceptable to the other. Consent and explicit consent is required. Communication needs to be clear prior to activity. How else can one partner know that the activity is ok with the other?
We need to get the focus of Title IX restored to where it belongs - the elimination of hostile environments and the prevention of their recurrence. Many times, throwing a supposed "perp" off campus fails to do either of these, and all the college has to show for its efforts is a lawsuit or two and large legal bills.
The fix is simple. Amend the DCL to remove language that suggests that colleges should be investigating the nature of "single incidents" to determine if they are serious enough to constitute a hostile environment. This action is needed immediately. The US Supreme Court has ruled on more than one occasion that the creation of a hostile environment requires a pattern of incidents - and no single incident, no matter how severe, can by itself be a pattern. Colleges need to be redirected to look at the context in which complained about incidents take place and the context of their after-effects. Hostile environments are about context, not incidents.
If a student believes another student assaulted them, assault is a crime and should be handled as such. Giving claims of sexual assault special status, special tribunals, and procedure which differ from the established criminal court system is not helping the victim nor the accused. Title IX is not an excuse for colleges to put students at added risk by failing to treat accusations of a crime as just that. The college has an investigatory role to play - but it is with regard to hostile environments not with regard to accusations of assault.
Make no mistake, if two people failed to communicate well during a sexual encounter that can easily contribute to a hostile environment. Being forced to have repeated encounters (in class or elsewhere on campus including dorms) with the other person can impose psychological barriers. Those barriers form a hostile environment which the school must address. One or both parties can have psychological issues resulting from their processing the events of the encounter or which were triggered by the events of the encounter. If the school fails to deal with those psychological issues, that failure could create a hostile environment. One party could engage in ongoing harassing behavior with regard to the other (which could even be joined in with by friends or teammates). That would create a hostile environment. Under Title IX it is the college's job to deal with such hostile environments.
Amending the DCL is but a first step. Replacing it with rules properly drawn under established administrative procedures, with public comment, and an opportunity to challenge in court is the next step.
Mrs. DeVos has her work cut out for her. Title IX reform is, unfortunately, one of her easiest tasks.
Full disclosure: I am the executive director of Empowering Victims the social action arm of a Massachusetts non-profit that has spent the past two and one-half years focused on the issues of sexual consent, sexual assault, school-age bullying, and domestic violence. Our correspondence with Secretary DeVos on this issue is a matter of public record, and a copy can be found at http://empoweringvictims.org/DCL.pdf