Title IX and the weaponization of due process

Sam Jocas

Content Warning: Sexual Assault 

What do you call a 2,000-page overhaul of legislation that strips power from one of the most vulnerable populations in the sphere of higher education? If you are anyone with a conscience or a brain, it would be an incomprehensible miscarriage of justice. But if you’re Betsy DeVos, it’s just a Wednesday. 

This past week, Secretary of Education Betsy DeVos published the changes made by the Department of Education to Title IX, the 1972 Amendment to the Higher Education Act prohibiting discrimination on the basis of sex in any federally funded education or program. On college campuses, it is known as the device by which survivors of sexual assault may seek legal remedy. To nobody’s surprise, several key powers of Title IX have been diminished, providing greater support to those accused of sexual assault. The accused must now be presumed innocent prior to and during investigation. Schools now have greater discretion in using a higher burden of proof that makes it harder to rule against offenders. Live hearings and cross-examinations of witnesses are now required. Colleges are now given full discretion to handle sexual assault cases that fall directly outside of Title IX  ‘in any manner the college chooses.’ What is the justification for these changes? To secure the rights of due process for both parties involved in Title IX cases and ensure equal protection of the lawfor the accuserand the accused. 

I call bullshit. Time and again, courts throughout history have invoked due process arguments to masquerade as protection of equality when in reality they put their thumb on a scale that was uneven to begin with. In 1905, the Supreme Court used due process to justify banning workplace safety regulations and minimum wage laws, giving more power to corporate executives. In 1978, the Supreme Court used due process to substantially restrict affirmative action to the advantage of white students. Let me be clear: The due process and equal protection clauses of the 14th Amendment have resulted in many landmark wins for civil and individual rights, from Brown v. Board to Roe v. Wade. Unfortunately, one pitfall of due process, and the power of any legislation that operates under its jurisdiction, is that lawmakers can weaponize due process to afford additional protections to groups that already possess the legal upper hand. It takes advantage of chasms existing between what the law says to be true and what is actually true (read: equal protection of “all” citizens.) 

Hundreds of studies have concluded that the vast majority of perpetrators of sexual assault will not face any consequences: educational, legal or otherwise. The burden of proof required to prove sexual assault in criminal court lets fifteen out of sixteen rapists walk free, and DeVos changing the very definition of ‘sexual harassment’ to one considerably more difficult to prove makes the Title IX process more difficult for survivors, even outside of a courtroom. It is also well documented that live hearings and cross-examination are extremely traumatic for survivors, often preventing individuals from filing a Title IX claim for fear of having to face their abuser. With these new changes, having a chance at seeking justice requires survivors to possibly face direct questioning from an offender’s legal adviser. This process has been shown to provide minimal, if any, added benefit to factual findings and due process at the overwhelming cost of severe emotional stress. By any empirical measure, survivors are heavily disadvantaged in this process. So, if one wanted to truly provide ‘equal protection’ for the accuser and the accused, one would provide legal advantages to survivors. 

Make no mistake: Betsy DeVos is well aware of these facts. There were policy experts presenting these statistics while Title IX changes were being drafted, all recorded on the official transcript of the hearing. Her actions are intentional. She knows that allowing schools to use a higher burden of proof in investigations, while in theory would provide a chance for the accused to defend themselves, in reality will cause more survivors to watch their abusers walk free. She knows that required live hearings, while in theory would prevent people from falsely accusing someone of sexual assault for fear of having to face a live cross-examination, in reality will keep more survivors from seeking any remedy for fear of having to see their abusers in person. She knows that giving colleges full discretion in handling cases outside of Title IX’s jurisdiction, while in theory would allow schools to handle student claims in the way that they see best, in reality will allow schools to toss out any claim that they are not legally required to investigate. 

She knows. She doesn’t care. 

Don’t fall for the legal technicality of these changes. Don’t fall for the bullshit rationalization framing this as rectifying the dangers of false accusations. We are not, by any means, providing both parties due process and equal protection of the law. The legal system has been rigged against survivors from the start, and DeVos’ latest move confirms that this administration is hell-bent on ensuring that survivors never seek justice. 

Sam Jocas ’21 is an economics major from Canton, Ohio.