Title IX Revamped: Further Victimizing Survivors
Lauren Fleming*
“But if everything is harassment, nothing is.” Betsy DeVos.[1]
Title IX of the Education Amendments of 1972 “is a federal civil rights law that prohibits discrimination on the basis of sex in federally funded education programs and activities.” Office for Civil Rights, U.S. Dep’t of Educ., Questions and Answers on Title IX and Sexual Violence i (2014), https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf [hereinafter Title IX Answers]. All educational institutions, including elementary schools and institutions of higher education, that receive federal funding are subject to the Title IX provisions. Id.
In 2011, “the Office for Civil Rights . . . in the U.S. Department of Education issued a Dear Colleague Letter on student-on-student sexual harassment and sexual violence.” Id. The Dear Colleague Letter discussed the following: (1) the school’s responsibility to investigate and address sexual violence under Title IX, (2) how Title IX interacts with sexual violence, (3) how schools can be proactive in preventing sexual assault, (4) how Title IX interacts with FERPA and the Clery Act,[2] and (5) certain strategies and remedies schools can use in responding to sexual violence. Id. at i–ii. Furthermore, the Dear Colleague Letter explained that if a school “has not taken prompt and effective steps to respond to sexual harassment or violence,” the Office for Civil Rights “may initiate proceedings to withdraw Federal funding by the Department [of Education] or refer the case to the U.S. Department of Justice for litigation.” Office for Civil Rights, U.S. Dep’t of Educ., Dear Colleague Letter: Sexual Violence 16 (2011), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf [hereinafter Dear Colleague Letter]. In 2014, the Office for Civil Rights released more guidance on Title IX requirements because schools requested additional support. See Title IX Answers, supra, at ii. This guidance strategically formulated questions and answers to clarify Title IX requirements set out in the 2011 Dear Colleague Letter. See id. at ii, 1–46. It also provided examples of “proactive efforts schools can take to prevent sexual violence and remedies schools may use to end such conduct, prevent its recurrence, and address its effects.” Id. at ii.
Sexual assault statistics on college campuses alone are alarming. See Campus Sexual Violence: Statistics, Rainn, https://www.rainn.org/statistics/campus-sexual-violence (last visited Jan. 25, 2018). Females from eighteen to twenty-four are three to four times more likely to experience sexual violence compared to women of different age groups. Id. Of all students, 11.2% experience “rape or sexual assault through physical force, violence, or incapacitation,” 4.2% of students have been stalked while in college, and about one out of every six “college-aged female survivors received assistance from a victim services agency.” Id. Additionally, statistics reflect female non-students between eighteen and twenty-four are more likely to report than female students. Id. Nonstudents report at about 32%, while students only report at 20%. Id. Marginalized groups experience sexual assault at higher rates. See id. 21% of transgender, genderqueer, and gender nonconforming (TGQN) students have been sexually assaulted, while 18% of non-TGQN women and 4% of non-TGQN men have been sexually assaulted. Id.
Betsy DeVos, current Secretary of Education, claims that without the assistance of private representation, the Obama administration’s guidance on Title IX trampled over the rights of the accused. Toppo & Dastagir, supra note 1. However, the statistics do not support Secretary DeVos’s accusations. See The Criminal Justice System: Statistics, Rainn, https://www.rainn.org/statistics/criminal-justice-system (last visited Jan. 25, 2018). Out of every 1,000 rapes, 994 perpetrators will not spend a day in jail. Id. Only 310 rapes are reported to police, fifty-seven of those reports lead to arrest, and eleven of those arrests are referred to prosecutors. Id. From there, only seven of those cases referred to prosecutors will become felony convictions, and six of those seven convicted felony rapists will spend a day in jail or prison. Id. In other words, less than 1% of rapes become felony convictions. See id.
Betsy DeVos told reporters that “[n]o student should be the victim of sexual assault . . . . No student should feel unsafe. No student should feel like there isn’t a way to seek justice, and no student should feel that the scales are tipped against him or her. We need to get this right.” Greg Toppo, DeVos on Sex Assault Survivors and the Accused: ‘All Their Stories Are Important,’ USA Today (July 13, 2017, 11:03 PM), https://www.usatoday.com/story/news/2017/07/14/devos-sex-assault-survivors-and-accused-all-their-stories-important/478013001/. Echoing Trump’s rhetoric, Secretary DeVos met with victims as well as those who have been wrongly accused, saying that “[a]ll their stories are important.” Id.
It is extremely important to maintain a system where suspects are innocent until proven guilty, but the Department of Education’s rollbacks on Title IX further victimizes survivors. By implementing fewer protections through Title IX, Secretary DeVos “scorns respect for survivors” and “take[s] America back to a time when it was more difficult for survivors of sexual assault to receive justice.” Toppo & Dastagir, supra note 1.
The guidance from the Obama administration began to end the negative stigma that survivors fight against. See id. The Department of Education’s retreat from these policies may reinforce the fallacy that survivors of sexual violence are not credible.[3] All schools, whether or not they support the guidance from the Obama administration, will have to adjust to the change from the current administration or learn to attack sexual violence without federal assistance. It is important to watch how schools, especially institutions of higher learning, will approach Title IX investigations, sexual harassment, and sexual violence now compared to under the previous administration. Will these rollbacks lead to even fewer perpetrators serving time? Will victims and survivors still have outlets to heal, or will they have to remain in the shadows?
*Lauren Fleming is a second-year law student at the University of Baltimore School of Law, where she currently serves as a staff editor for Law Review. Last summer she interned at FreeState Justice, a non-profit serving the LGBT+ community, where she continues to volunteer occasionally. At school, she is a research assistant to Professor Garrett Epps. This upcoming spring semester, she will be a student attorney in the Human Trafficking Clinic, and over the summer, Lauren will be working at Schlachman, Belsky & Weiner, P.A.
[1] Greg Toppo & Alia E. Dastagir, DeVos to Revamp Title IX Guidance on Sex Assaults on College Campus, USA Today (Sept. 7, 2017, 3:38 PM), https://www.usatoday.com/story/news/2017/09/07/devos-revamp-title-ix-guidance-school-sex-assault/642368001/. Betsy DeVos said this in September 2017 as she announced the rollback of protections for victims under Title IX that the Obama administration clarified in 2011 and 2014. Id.
[2] FERPA stands for the Family Educational Rights and Privacy Act. Title IX Answers, supra, at ii. The Clery Act is the Jeanne Clery Disclosure of Campus Security and Campus Crime Statistics Act. Id.
[3] “[W]hen more methodologically rigorous research has been conducted, estimates for the percentage of false reports begin to converge around 2-8%.” Kimberly A. Lonsway et al., False Reports: Moving Beyond the Issue to Successfully Investigate and Prosecute Non-Stranger Sexual Assault, 3 Voice 1, 2 (2009), http://ndaa.org/pdf/the_voice_vol_3_no_1_2009.pdf.
University of Baltimore Law Review 