Last week, United States Secretary of Education, Betsy DeVos, released the highly anticipated Title IX regulations update. Title IX prohibits discrimination on the basis of sex which also includes cases of sexual misconduct. While the Department of Education has praised the new regulations for supporting survivors, their prediction is far from reality. In fact, Betsy DeVos’s new regulations raise more challenges for survivors to step forward in an already fraught process. The regulations do more harm than good and it is now up to universities like Penn to take action where the federal government has failed to.
In the DOE’s press release, DeVos stated that the new regulation “requires schools to act in meaningful ways to support survivors of sexual misconduct.” Analyzing this statement alone, DeVos seems to prioritize potential survivors of sexual misconduct. However, her words and her actions tell two different stories.
The first problem with the regulations is DeVos’s limited definition of sexual misconduct. Under the Obama administration, sexual misconduct was defined as “unwelcome conduct of a sexual nature” that includes “requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.” Now, sexual misconduct is defined as “unwelcome conduct that is so severe, pervasive, and objectively offensive.” By providing a more stringent definition, the DOE limits the scope of cases deemed worthy of legal action from institutions.
By defining sexual misconduct as “severe, pervasive, and objectively offensive,” DeVos essentially states that the cases have to be significant or serious enough to warrant legal action. This definition makes it even less likely for students to come forward, as survivors tend to think that their incidents are not of large concern. Now, these regulations will cause even fewer survivors to come forward. But the problems with the new Title IX regulations don’t stop there.
They also limit reports by location and, subsequently, who can report sexual misconduct. Title IX states that the school is only required to handle cases pertaining to “a school's education programs or activities.” Under this limitation, students who are sexually assaulted in off-campus housing, including off-campus fraternities, can no longer reach out to Penn for legal action. This narrowing of location serves to protect schools and perpetrators and leaves survivors of sexual assault with fewer options.
The new regulations do not empower survivors, it leaves them feeling helpless.
Now, it is up to the institution to decide whether it wants to use a “clear and convincing evidence” or a “preponderance of evidence” standard for sexual misconduct standards. Generally, cases of sexual misconduct tend to have less evidence and fewer witnesses simply due to the nature of the case, and upholding it to a higher standard would not lead to justice for survivors.
The new regulation also requires cross-examination of survivors. Sexual assault cases are uniquely tramatic, and for DeVos to disregard the sensitive nature of sexual assault cases is cruel. No one should be required to speak about such a traumatic experience in front of strangers let alone be relentlessly questioned on the stand. Different people respond to trauma in different ways and it would be hard to gauge whether the victim is being ‘genuine enough’. The justice system must uphold its standard that individuals are innocent until proven guilty. By raising the standards, survivors are now guilty until proven innocent.
The new regulations are a major push back for sexual assault survivors as well as organizations such as the Penn Anti-Violence Educators and the Coalition Against Fraternities and Sexual Violence who are committed to protecting survivors. In Penn’s current sexual violence policy, Penn commits to “[fostering] a safe and healthy environment for all members of our community.” Too many times in history, policies have upheld those in power rather than those harmed by the policies. Now, it is up to Penn to develop its own regulations and standards stating that it will still take action and uphold justice. Although Betsy DeVos does not require Penn to support survivors, Penn must require it of itself.
In regard to the new definition of sexual misconduct, Penn should be more considerate to a wide variety of instances. Penn’s openness to cases will allow survivors to feel more comfortable coming forward.
In regard to the location of assaults, Penn ought to take into account cases which occur in off-campus fraternities, gatherings, and social events which occur during the school year. Not doing so gives more freedom to potential perpetrators.
In regard to the level of scrutiny, Penn must continue evaluating with the preponderance of evidence standard, which requires a more than 50% chance of guilt and the “clear and convincing standard”.
Betsy DeVos’s regulations favor the perpetrator. As a student, I want to live and learn on a campus where the administration adequately supports survivors and encourages them to come forward. As a woman, I do not feel comfortable with the new regulations to come forward and I know that I am not alone in this feeling. Contrary to the press release statement, the new regulations do not “strengthen Title IX protections for survivors,” it weakens them.
Betsy DeVos and the Department of Education had little compassion when writing the new regulations. These are the type of people we have in government leading this country. And if that does not worry you, then you may be just as heartless.
EMILIA ONUONGA is a rising College sophomore from Middletown, Del. studying Philosophy, Politics, and Economics. Her email address is firstname.lastname@example.org