New Title IX policies will upend years of progress

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Frances Yang/Staff

Meaningful change is inherently slow. When discussing sexual violence and sexual harassment, commonly referred to as SVSH, the issue is further complicated by legal and cultural barriers. Culturally, survivors are often not believed or taken seriously, and those who do report often see their assaulters face zero to minor legal consequences. When for every Harvey Weinstein there are hundreds of Brock Turners, it is easy to lose hope in a society that was never designed to prioritize survivors.

From 2014 to 2018, UC Berkeley recorded 525 allegations of sexual violence. This number is an underestimate, as Department of Justice studies indicate that only 20 percent of instances of assault and harassment are reported. At Cal, between 2008 and 2015, in 62 proven cases of sexual assault and misconduct, only six individuals were expelled. The rates for SVSH among women of color and transgender women are significantly higher, which raises the stakes for communities that are already facing numerous barriers on campus and beyond.

The current U.S. presidential administration, as reported by the New York Times, is now moving forward on a proposal to adopt significantly less stringent policies. Title IX is the set of federal laws that prevent sex discrimination, including SVSH, and the new policies reverse many of the suggested guidelines from the Obama administration and increase the barriers to reporting and accountability. The policies, according to the Times, would restrict sexual assault and harassment reports to only those instances that occur on campus. Furthermore, the new rules may change the definition of sexual harassment to only apply to “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program.” This definition would severely restrict recourse for individuals who experience forms of sexual harassment that may not be so severe as to fit this definition but nonetheless substantially affect their ability to operate at their university and as human beings.

Put simply, these rules signal a major step backward. Campuses may choose to enforce sexual violence policies stringently, but without clear direction from the government, there is no external accountability or consequences for not doing so. Despite consistent progress over the past few years, universities continue to prioritize prestige and their reputations over justice for survivors. In February 2018, UC Berkeley was found to have mishandled at least eight Title IX cases as found by federal investigators. If Title IX policies are weakened, there are questions to be asked regarding whether universities will be held accountable by the federal government — and if they are, to what standard?

The shift in policies is no surprise to those who have been paying attention. In a meeting between the Office of the ASUC External Affairs Vice President, or EAVP, and the U.S. Department of Education’s Office for Civil Rights in March 2018, students’ concerns regarding the revocation of the Obama administration’s “Dear Colleague” letter on SVSH policy were brushed aside to emphasize “protecting due process for the accused.” Though seemingly well-intentioned, policies of this type increase the burden on survivors and make reporting more difficult. Additionally, in an environment where only 2-10 percent of reports are false, the same rate as for most crimes, the issue of due process for the accused is not proportional to the issue of the campus sexual assault epidemic.

One of the most concerning proposed rule changes alters policies surrounding mediation and cross-examination. Mediation, a process by which the accused and the survivor come to an informal agreement facilitated by the university, was marked by the Obama administration as inappropriate in all situations because of the imbalanced power dynamics between an abuser and a survivor. Compounding this issue, the new rules as reported would enable the accused to cross-examine the survivor and vice versa. The significant and unfair emotional toll this would put on a survivor should be clear, especially when the rationale behind the new policies is to make the process more equitable for everyone involved.

Finally, the new rules would allow universities to choose an evidentiary standard, meaning that survivors would need clearer evidence to prove the validity of their case. The Obama administration set the threshold at a legal standard equivalent to more likely than not (51 percent), but universities could now choose to burden survivors with a standard of proof beyond a reasonable doubt (99 percent). This higher standard would further burden survivors in cases that are often muddled by alcohol, hearsay and difficulties in obtaining evidence.

We expect the full draft of the new rules to be issued in mid- to late September. Assuming the policies as reported by the New York Times are what is released, the mobilization of students is imperative to resist them. Letter writing, calling representatives and showing solidarity with survivors in visible, effective, tangible ways is essential to advocate effectively. Furthermore, we have to be organizing on campuses across the nation to push university administrations to adopt internal policies that are reflective of the previous, more stringent regulations and that help survivors. Finally, we as students need to do a better job of understanding SVSH, listening to survivors and educating one another so that a culture that favors a survivor’s search for justice is normalized across our campus and beyond.

Nuha Khalfay is a senior studying public health and is the ASUC external affairs vice president. Mark Green is a junior studying political science and linguistics and is the EAVP national affairs director. Kylie Murdock is a junior studying environmental science and is the EAVP chief of staff.