Title IX critics huddle up for special treatment

When I read complaints that Title IX enforcement goes too far in dealing with sexual assault on campus, I think of football.

Not because this topic is a political football being tossed around in the court of public opinion, though there’s that. In the history of Title IX, today’s complainers of government “overreach” in dealing with sexual assaults have a lot in common with college football teams and other men’s sports, but especially football.

Education Secretary Betsy DeVos (Courtesy Gage Skidmore/Wikimedia/Creative Commons)

What they want, it seems, is for people to realize that they’re special, and that they deserve special rules. The government more than once has bent over backwards to try and give them special treatment, and it appears ready to do so again under Education Secretary Betsy DeVos. She held three highly publicized meetings this week, one with advocates for sexual assault survivors, another with advocates for men who claim they were falsely accused of sexual assault (including an organization called SAVE that the Southern Poverty Law Center describes as a hate group), and lastly with college and university administrators who wish they didn’t have to deal with either one. DeVos suggested that she wants to “quickly” change Office for Civil Rights policies around sexual assault, Buzzfeed reported.

After Title IX’s regulation went into effect in 1975, men’s athletics directors whined about having to change anything so that women would have a chance to play sports. Applying Title IX, they said, would ruin football (the team sport that best celebrates macho, violent masculinity). They adamantly rejected a simple, clear-cut test of fairness, like spending equal amounts of money on men’s and women’s sports, and tried to score a complete exemption from Title IX for football and basketball. Women’s advocates pushed back, and the Office for Civil Rights (which enforces Title IX) designed a compromise “policy interpretation” in 1979 that uses a more complex three-part test to determine if a school’s athletics department is discriminating against women.

In the ensuing decades, when budgets tightened or some sports became less popular, administrators at some colleges cut men’s teams like wrestling or swimming. The wrestlers and swimmers could have found common cause with female athletes who were — and still are — being short-changed, and could have pointed a finger at increasingly bloated football teams and budgets. After all, more male students (and female ones) are playing sports than ever before, so Title IX has not decreased athletic opportunities overall, but football sucks up more and more of the resources, especially at Division I schools. Instead, against all evidence, they tried to blame Title IX for forcing the cuts, even though most colleges managed to comply with Title IX without cutting men’s teams. They’ve lost that argument again and again in courts of law.

But the men complained long enough and loud enough that President George W. Bush’s Administration formed a Commission on Opportunity in Athletics. From the starting block, the Commission seemed overly concerned with possible effects of Title IX on the lives of the suffering male wrestlers and intent on changing Title IX enforcement, even though women’s athletics still got the short end of the stick. Again, women’s advocates pushed back, and by this time so many girls and women had benefited from Title IX that a public outcry stymied attempts to weaken Title IX.

Since the first case under Title IX complaining of sexual harassment and assault in 1977, women have been trying to get schools and colleges to meet their legal responsibility to fairly and promptly deal with sexual assaults. More than once, the Office for Civil Rights offered guidance on how to do this, including a 2011 “Dear Colleague” letter to administrators offering more specific advice. As increasing numbers of women (and some men) have stepped forward to complain of assault and of administrative mismanagement, and as more men get identified as alleged assailants, advocates for the accused have attacked Title lX enforcement as not fair to them.

They claim that campus tribunals aren’t good enough to adjudicate cases of sexual assaults, even though they’ve been adjudicating everything from plagiarism to rioting to homicide by students for nearly 200 years, as one college president pointed out in the Washington Post. They claim that assault cases shouldn’t be handled under Title IX at all but left to the police, misunderstanding that civil law and criminal law don’t cancel each other out but live side by side. Students have a right to demand that schools deal with safety on campus and the effects of an assault in a way that lets them continue their education, independent of any criminal complaint to police.

The claim by advocates for the accused that’s gotten the most traction so far refers to the reminder in the 2011 “Dear Colleague” letter that the standard for judging civil cases is  whether there is a “preponderance of evidence” that the accused did commit the offense. Meaning, is the accusation more likely than not to be true. That’s been the standard required by the Office for Civil Rights for at least 22 years, but men’s advocates claim this was something new dreamed up by the Obama Administration in the 2011 letter. They want this changed to a tougher standard, a requirement that there be “clear and convincing evidence,” because, well, sexual assault is special, and deserves a special rule. The accused rapists are suffering, and their suffering somehow is so much more special compared with the suffering of the people who are raped that the rules need to be changed to make things easier on the accused, even if that makes things worse for victims.

Advocates for the accused could find common cause with accusers by focusing on the shared problem of getting administrators to comply with Title IX’s requirements for prompt and equitable investigations and for taking proactive steps to prevent sexual assault and harassment. They could try to change a culture that produces large numbers of sexual assaults, a relatively minuscule number of false rape accusations, and leniency for rapists. Instead, they try to change the rules in their favor.

Courtesy Thomson20192 via Wikimedia/Creative Commons

Like the 1979 compromise around athletics, what we may get is a more vague and complex compromise for sexual assault cases. Anticipating that the Education Department under the Trump Administration might try to change Title IX’s procedures for handling sexual misconduct, the American Bar Association convened a task force that produced recommendations in June 2017. DeVos hinted that she’s considering a compromise like this.

The ABA proposal avoids both “preponderance of evidence” and “clear and convincing evidence” as standards of proof in favor of two potential scenarios. In order to hold someone responsible for alleged misconduct, a three-person tribunal would have to agree unanimously that they can “reasonably conclude” by the quality of the evidence that the person committed the misconduct. Or, the evidence would have to “firmly” convince a solo adjudicator to “reasonably conclude” that the accused is responsible for the misconduct.