Welcome, welcome, welcome to Not Last Week Tonight. My name is Claire Rood. I am the Legislative Director for ASPCC Cascade
and today we're talking about Title IX. Quick trigger warning: Title IX is, in part, about sexual assault.
So if you're sensitive to descriptions of sexual violence, don't worry.
This is all policy stuff. If you are triggered by shade, however, this video might disturb you.
Last November, the Department of Education released its long-awaited overhaul of campus sexual assault policies,
otherwise known as Title IX. And surprise! It's a trash fire!
So ASPCC is running a HandsOffIX campaign to tell Education Secretary Betsy DeVos
to keep her hands off Title IX. But we realized that most people don't
super duper know what Title IX is. So let's get into it. What the f**k is Title IX?
Title IX was passed in 1972 as part of the Education Amendments.
It's a federal civil rights law and it 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 assistance."
Which is basically all schools. It prohibits sexual harassment, sexual assault or any gender-based discrimination
that might deny a student access to educational opportunities.
If a college receives a report of sexual violence, under Title IX, it is required to investigate that claim or at least provide
accommodations to help survivors continue their education.
I should say here that I am using "sexual assault" as a blanket term to describe any sexual violence. While there are important differences
between, for example, verbal harassment and rape,
both exist on the same spectrum of violence that Title IX attempts to address.
The most important things to remember are: (1) rape culture is a thing and it's not up for debate, and
(2) Congress enacted Title IX to protect people who are experiencing gender discrimination.
These new rules, proposed by this new administration,
focus on protecting people who perpetuate campus violence.
Secretary DeVos, seen here with her advisers, is trying to reframe Title IX
And she's doing this by changing the evidentiary standard to make it harder to prove an assault occurred;
Narrowing the definition of sexual violence, so schools are only required to investigate the most obviously violent claims,
while sweeping all other assault and harassment under the rug;
limiting a school's jurisdiction; and letting accused students
Cross-examine their accusers and witnesses via a third party in a live hearing.
Now, all these changes will, together,
have the effect of silencing survivors. But let's look at them one-by-one.
Evidentiary standards.
The Obama administration made it a priority to crack down on schools that weren't taking campus sexual assault seriously.
Before Obama, colleges could get away with dismissing assault allegations.
Which is a huge issue because rape is rampant on, like, Earth. And certainly in college.
So in 2011, the Obama administration issued the Dear Colleague letter, or the DCL,
advising all colleges to use the preponderance of the evidence standard to determine guilt in sexual assault
cases. In September of 2017, a mere thousand years ago,
Education Secretary and sentient knockoff Coach bag Betsy DeVos
announced that the department would rescind the 2011 letter,
signaling to schools that they would no longer be held accountable for how well they were adhering to Title IX.
It's no surprise, then, that the new rules would allow for a higher
standard of evidence than the preponderance standard
And I know what some of you are thinking. "Claire you keep saying
preponderance like I know what that means." So what is the preponderance standard?
There are three evidentiary standards.
One, the highest standard, is "beyond a reasonable doubt", as in the evidence that someone is guilty of a crime is so
convincing that no reasonable person would question at the defendants guilt.
We use this in criminal courts because the consequence in that setting is loss of life and liberty.
The second is "clear and convincing evidence", which is like, "We're 70 percent sure this happened."
So it's on a crime victim to prove that it is substantially more likely than not that a crime was committed.
And third, the lowest standard, is "the preponderance of the evidence".
We use this in civil lawsuits and in cases alleging discrimination.
It means "we're like 51 percent sure this happened and not as convinced that it didn't happen."
The lower standard is used in civil suits because no one's losing any rights --
they're just being sued or losing a privilege.
One of the arguments against using a lower standard of evidence
is that courts use a higher standard when they deal with sex crimes.
This inclination to defer to the criminal justice system is misguided.
We don't want to replicate the criminal justice system in schools. That's called the School to Prison Pipeline and it's real racist.
Maybe we'll go over in another video. For now, let's focus on Title IX.
The goals of these two institutions -- higher ed and criminal justice -- are very different.
A criminal courts goals are punishment and incarceration, while schools are concerned with equity.
So in order to achieve the goals of higher education, it's necessary to continue using the lower standard of evidence.
Critics also claim that the preponderance standard is unfair to
accused students because, they say, it doesn't provide adequate due process protections.
They're wrong.
And yet, the Department of Education is "both-sides-ing" this issue.
It's been building its Title IX policies on a false equivalence between the experience
of a student reporting sexual assault and that of a student accused of it.
When we talk about sexual assault on campuses, and when we talk about problems faced by survivors,
we actually don't have to talk about false accusations as if they're an equally pertinent issue.
False accusations just aren't that common.
Men are more likely to experience sexual violence than to be falsely accused of it.
And even the most sympathetic studies find that between 92 and 98 percent of
assault allegations are true.
Still, some people say things like, "Sexual assault and rape are very serious problems,
but so is being falsely accused.
Yeah, but it's not the same thing. Because as evidenced by the need for the Dear Colleague Letter,
nothing really happens when someone is accused of assault. Most of the time, nothing happens.
Some of the time, they're confirmed the Supreme Court.
Twice. Twice that's happened.
It's important to validate the tacit obviousness that false accusations are bad. We all agree on that.
But they're not as likely as being raped or assaulted.
Being punished for something you didn't do is serious . Like plane-crashing-into-your-house serious.
But like a plane crashing into your house, the chances are extremely slim.
The DCL was issued because colleges aren't disciplining students for assault,
even when they're found responsible for it. Could Title IX be improved?
No, duh!
But that reform has to be grounded in an acknowledgement that gender violence is
widespread and that, in fact, the history of women's state-sanctioned legal and sexual subordination to men
makes a scenario wherein men are punished for violence against women seem unfair.
When you're not used to being held accountable for your actions,
accountability can feel like unfairness.
Any policy that doesn't acknowledge this full history and context of the issue is irresponsible.
Title IX is a civil rights law.
We use the preponderance standard in all other cases alleging civil rights violations on campus.
There's no Office for Quasi-Criminal boners in the Department of Education
because Title IX isn't about criminalizing boners.
Title IX is enforced by the Office for Civil Rights because it's a civil rights issue.
We don't need to carve out some special protection for accused pervs.
So that's the first policy change proposed by DeVos, a woman who could not articulate the role of the Office for Civil Rights.
Excuse me, while I shoot fire out of my eyes.
The other changes are pretty straightforward.
A change to the definition of assault under Title IX. Quoting these super nerdy website Vox.
(That's "Vox" with a V, not an F.)
"The 2011 guidelines defined sexual harassment as 'unwelcome conduct of a sexual nature'.
But the new rules set a stricter standard for what constitutes harassment, defining it as 'unwelcome
conduct on the basis of sex
that is so severe, pervasive and objectively offensive that it denies a person access to the school's education program or activity'."
That is so many words and so unhelpful.
This is reminiscent of the old "not that bad" response to gender violence. Under the new definition,
schools could ignore incidents that don't look like The Purge.
Next, jurisdiction. The current regulations require schools to process cases of assault that occur on and off campus.
The new rules would ease that regulation by allowing schools to ignore off-campus incidents.
This is especially significant for PCC students because we don't have campus housing,
no one lives on campus and our student body is f**king huge! Like, larger than the population of Rhode Island huge.
And finally, cross-examination and live hearings.
DeVos's new rules would require schools to hold live hearings where accused students can cross-examine
accusers and witnesses via a lawyer or advocate.
We know that cross-examination can be triggering for survivors,
and therefore, is not a useful fact-finding tool. Title IX is about giving survivors the support
they need to stay in schools.
These new rules simply don't achieve the goal of the law, which is to protect students who are experiencing gender violence.
In 1972, not unlike today,
Americans had to reckon with the idea that behavior long considered harmless --
like locking someone in your office and taking your dick out, Matt Lauer, or
getting someone too drunk to consent to sex --
are actually forms of discrimination that do longterm, material damage to women as a class.
The persistence of a sexist culture hurts everyone, both socially and economically,
and for decades. There are tons of women and gender non-conforming
people, and some men, who say things like, "I was raped in medical school. I'm not a doctor now."
"I was raped in law school.
I'm not a lawyer now." So we can see the effects last a long time and they affect everyone.
The misogyny that targets cisgender women is the same misogyny that targets trans people, queer people, even fraternity pledges,
anyone who doesn't conform to traditional expectations of sex and gender.
We need to expand civil rights on campus and in general, not rein
them in, as DeVos is trying to do.
And this time, students have the power to stop this messy
administration from rolling back our rights. But we only have until January 28th!
If you want to get involved with the HandsOffIX campaign, go to your campus
ASPCC office and ask for one of the lovely Legislative Directors or email me directly at claire.rood@pcc.edu.
Thanks for watching and happy 2019! Keep an eye out for Title IX events on your campuses.
Now here are some things I didn't get to say about Betsy DeVos.
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