This commentary was published in the Monterey Herald on 9/25/17.
During the week of September 10th, 2017, the Monterey Herald published two articles by New York Times Columnists that were in support of Education Secretary Betsy Devos’ recent statement about Title IX and sexual assault on campus. (Bret Stephens: “DeVos ending campus witch hunt on sexual assault,” and Ross Douthat: “Liberalism and the campus rape tribunals.”) A counterargument is appropriate and necessary.
Title IX of the Education Amendments of 1972 states that “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.” This includes protecting the educational civil rights of students who have experienced sexual violence and harassment.
Some may ask, why not leave it up to the criminal courts to decide whether sexual violence has occurred? The criminal court system can take years and prosecutes a small fraction of all sexual assault cases that are reported to law enforcement How is a survivor supposed to find the appropriate protection if, for example, his/her assailant is currently residing in his/her dorm building or sitting next to him/her in class? There are cases where the campus administration must intervene to accommodate a student who might otherwise sacrifice their education out of fear of facing their assailant on campus. If an investigation is inconclusive, accommodations can still be made for the reporting party without penalties for the “accused” party.
Under Title IX, schools do not take the place of courts in judging whether or not someone has committed a criminal act. School adjudication outcomes do not result in a criminal record, the accused do not face criminal penalties such as jail/prison, and they cannot be ordered to register as a sex offender due to the outcome of a Title IX hearing. At worst, someone who is found to have committed rape by a Title IX adjudicaton process will be expelled from campus - hardly the “travesty of justice” that Stephens suggests.
The Campus Advocacy & Prevention Professionals Association (CAPPA), in a recent position statement, affirmed preponderance of the evidence as the “appropriate evidentiary standard for disciplinary proceedings,” because that is the standard used in Title VII discrimination cases. CAPPA further states “it is only appropriate to use a consistent and established standard of evidence for both types of civil rights cases.” Students should be granted the same rights to attend school free from harassment and assault, as would employees in the workplace.
Stephens states that in 2015, 89 percent of colleges and universities reported zero incidents of rape. Research repeatedly shows us that sexual assault is the most under-reported crime; 63% of sexual assaults are not reported to the police. The false reporting rate is low and consistent with that of other crimes - 2 to 8%. 1 in 5 women and 1 in 16 men are sexually assaulted while in college (NSVRC 2017). If 89 percent of colleges and universities are reporting zero incidents of rape, that is not an indication that sexual assault is not occurring. It is an indication that students are not reporting these incidents to the administration or to law enforcement.
More work needs to be done to promote an environment where survivors of sexual assault feel that their school will handle their report appropriately. Furthermore, much more prevention work needs to be done to eliminate predatory behavior and the incidence of sexual assault in our communities. Rape and sexual assault happen when a person decides to commit an act of rape or sexual assault. It should not be tolerated in our education system or anywhere else.
