About a year and a half ago, we wrote that DeVos—left unchecked—was likely to undermine Title IX processes and definitions that were instituted to protect victims and encourage them to come forward. On May 6th, the current administration revised Title IX laws in several important and discouraging ways. Wendy Murphy, a professor of sexual violence law who sued DeVos in 2017, calls this revision “a bad turn”. 

Title IX protections are civil rights protections. As individuals are constitutionally protected from crimes associated with race and religion, Title IX protects people from crimes associated with sex. In 2011, President Barack Obama reminded institutions of higher education (IHEs) of their responsibility to respond to sex-based assaults just as they would respond to race-based assaults. President Obama’s “Dear Colleague Letter” ushered in an era of increased guidance and accountability on college campuses. That time appears to be over. 

What are the updates and what do they mean? 

1. The new law includes increased protections for the accused. This pertains to both evidence and process. The Obama administration asked IHEs to use the standard of “preponderance of evidence” in order to assess guilt. Now, institutions can opt to use the “clear and convincing” standard. Given the murky nature of many sexual assaults and other sex-based crimes as well as the psychological harm experienced by many victims, we are likely to see even fewer cases assessed in favor of the victim under this standard.   

2. Importantly, regarding the standard of evidence, Wendy Murphy says that the rhetoric around due process on college campuses in false. She goes on: “But when new rules purport to give “due process” only to students accused of sex-based offenses, while students accused of race-based offenses don’t get the same rights, it isn’t due process at all because due process would have to apply across the board. Giving special rights only to offenders who target females is just run-of-the-mill sex discrimination masquerading as due process.”

3. IHEs can now employ courtroom-style cross-examinations, including of the victims. This style of questioning, which is often aggressive and adversarial, is likely to dissuade additional victims from coming forward. It has also been shown to be a poor tool for getting to the truth in cases of sexual violence. Once again, this change is likely to mean fewer victims obtain a just outcome. 

4. A revised definition of sexual harassment will make it even more challenging for victims and victim advocates to assert that their experiences were, in fact, harassment. The updated definition used the phrase, “severe, pervasive, and objectively offensive”. This is troubling because some instances of harassment, like rape, may be one-time occurrences. It is therefore arguable that they are not pervasive and therefore not classified as sexual harassment. Some victims may never even have a day in court to assert their claim based on this definition. This is absurd, harmful, and the worst kind of negligence. 

What can we do? 

1. Support advocacy organizations. The ACLU has already made clear its intention to sue the US Department of Education in order to reinstate victim protections. Donate or share their social media posts. 

2. Support victims. If the new regulations stand for any length of time, victims of sexual assault are likely to face even more challenges when it comes to naming their accusers and engaging with campus justice processes. Consider giving to victim advocates organizations or volunteering, as their caseloads are also likely to be heavier than ever. 

3. Check in with the victims you know. This is likely to be a challenging time for the sexual harassment and assault victims in your life—it may bring up triggering memories, cause increased doubts about their ability to see justice served, or prove an additional obstacle in their current legal battles. Show up, listen, and ask what they need. 

This is personal for me. I know far too many women who have been raped and assaulted on or near their campuses. Some of them never were never granted any process by which to levy their accusations. Some of them experienced additional traumas through the processes on their respective campuses. Some of them bravely faced unfair and adversarial campus procedures only to have their rapists walk the campuses freely and with no lasting consequences. The new Title IX regulations will be effective in August, just before many institutions will reopen for the fall term.

-Lauren