_Hirsh Joshi is a first-year law student at MU. He writes columns about government, race, politics and culture_
Secretary of Education Betsy DeVos is among the Trump administration’s most infamous cabinet picks. Secretary DeVos was the first cabinet nominee in American history to be confirmed by a vice president’s tie-breaking vote. Since her confirmation, Secretary DeVos and her department have consistently worked to reshape Title IX-mandated provisions that set out a safe, fair process by which students can report sexual harassment and assault on campus.
Earlier this year, the Department of Education finalized a list of the new Title IX regulations that some argue will dissuade reporting. All postsecondary institutions that receive federal funding, like MU, must comply with the new regulations. This is the first time since 1997 that the Department of Education’s Office of Civil Rights (OCR) has released formal Title IX regulations.
The released material includes guidelines that merely direct universities to their options under Title IX. For instance, one new guideline is a change in the amount of evidence needed to find a student in violation of a school’s student code. The Obama administration mandated that schools use the standard of “preponderance of the evidence.” This means over half of the evidence is needed to find a student in violation of a school’s student code.
The new guidelines allow universities to decide between using the “preponderance of the evidence” or “clear and convincing” standards. The latter is a much higher standard, which makes it harder to find a perpetrator in violation.
The result of using the higher standard would be devastating because a respondent (the party accused of discrimination or harassments) is more likely to not be found in violation of the student code. A direct consequence is less reporting of harassment and sexual misconduct. This process can drag out over months and take a toll on the complainant, who we presume has already been through enough.
Having a higher standard for finding a violation will dissuade survivors from reporting their very real claims. Along with the personal and emotional reasons that a survivor may not report, adopting a high standard of evidence would only worsen the issue.
Luckily, the UM System chose to keep the standard as “preponderance of the evidence.”
However, one part of the UM System code that deserves strict scrutiny is their definition of a complainant. (Section 600.030). Their definition of a complainant states that even if a victim of discrimination, harrassment or sexual misconduct decides to report but not pursue a claim for sanctions under the same code, the university may serve as the complainant and nevertheless pursue charges against the respondent.
“The University may serve as the Complainant when the person alleged to have been subjected to discrimination, harassment or sexual misconduct in violation of the University’s Anti-Discrimination Policies chooses not to act as the Complainant in the resolution process or requests that the Complaint not be pursued.” (Section 600.030 (C)(2)).
This can have an adverse effect on someone who wishes to report.
If universities wish to keep their campuses safe, they will argue for pursuing any claim that might prevent this type of activity from happening again. If a survivor has been threatened by a respondent, and subsequently drops a charge, that reeks of injustice. How can the UM System enforce justice if those who complain can be threatened out of reporting?
On the other hand, it takes power away from the one person who ought to matter — the survivor. There can be a number of compelling reasons that one may wish to withdraw their complaint. Some of those reasons include not wanting to testify or answer questions regarding a traumatic event. They may want to seek counseling and move on. That’s a decision that should be theirs to make.
What’s even more disturbing is that a University-complainant might call a survivor in as a witness, despite the survivor dropping the complaint. Even if a survivor chooses to be done with the entire process, for whatever reason, they may still be involved as a witness and have to recount their entire story again. Under new Title IX regulations, live cross-examinations are mandated for post-secondary institutions, only by an advisor for both sides.
This would mean that a survivor would have to take antagonistic questions from someone appointed by the respondent as their advisor. A cross-examiner seeks to ask unfair questions of the complainant and witnesses to undermine their credibility.
While questions about sexual history are explicitly banned by new Title IX regulations, questions about drinking and “implied consent” are not.
The UM code does not explicitly say that this will definitely happen, but it should horrify students that the university reserves this right. While protecting a community at large is certainly a valid concern, it’s dangerous that this right can be invoked at the university’s will.
It’s worth noting that a good handful of people who are writing these rules are appointed by elected officials. From Betsy Devos on down, voting determines these outcomes. Demand better from those elected officials. The best way you can do this is by voting. Vote for candidates that won’t appoint officials who create regulations that will lead to traumatic situations. Vote for candidates who will impose a better process for survivors.
_In an effort to raise awareness for issues surrounding domestic violence, sexual assault, sexual harassment and sexual misconduct, the Maneater asks you to consider donating to the Rape, Abuse & Incest National Network dedicated to providing resources for those affected by sexual or domestic violence and misconduct. https://donate.rainn.org/donate?_ga=2.261111557.963622467.1603576069-234113787.1603576069 _
_Edited by Sofi Zeman | szeman@themaneater.com_
