A Better Way Forward on Title IX Enforcement? A Speech by Education Secy Betsy DeVos at George Mason University

A Better Way Forward on Title IX Enforcement? Remarks by Education Secy Betsy DeVos at George Mason University

Where does that leave parents?

Where does that leave students?

This failed system has generated hundreds upon hundreds of cases in the Department's Office for Civil Rights, mostly filed by students who reported sexual misconduct and believe their schools let them down.

It has also generated dozens upon dozens of lawsuits filed in courts across the land by students punished for sexual misconduct who also believe their schools let them down.

The current failed system left one student to fend for herself at a university disciplinary hearing.

She told her university that another student sexually assaulted her in her dorm room. In turn, her university told her she would have to prosecute the case herself.

Without any legal training whatsoever, she had to prepare an opening statement, fix exhibits and find witnesses.

"I don't think it's the rape that makes the person a victim," the student told a reporter. She said it is the failure of the system that turns a survivor into a victim.

This is the current reality.

You may have recently read about a disturbing case in California. It's the story of an athlete, his girlfriend and the failed system.

The couple was described as "playfully roughhousing," but a witness thought otherwise and the incident was reported to the university's Title IX coordinator.

The young woman repeatedly assured campus officials she had not been abused nor had any misconduct occurred. But because of the failed system, university administrators told her they knew better.

They dismissed the young man, her boyfriend, from the football team and expelled him from school.

"When I told the truth," the young woman said, "I was stereotyped and was told I must be a 'battered' woman, and that made me feel demeaned and absurdly profiled."

This is the current reality.

Another student at a different school saw her rapist go free. He was found responsible by the school, but in doing so, the failed system denied him due process. He sued the school, and after several appeals in civil court, he walked free.

This is the current reality.

A student on another campus is under a Title IX investigation for a wrong answer on a quiz.

The question asked the name of the class Lab instructor. The student didn't know the instructor's name, so he made one up—Sarah Jackson—which unbeknownst to him turned out to be the name of a model.

He was given a zero and told that his answer was "inappropriate" because it allegedly objectified the female instructor.

He was informed that his answer "meets the Title IX definition of sexual harassment." His university opened an investigation without any complainants.

This is the current reality.

I also think of a student I met who honorably served our country in the Navy and wanted to continue his education after his service. But he didn't know the first thing about higher education.

He Googled "how to apply to college" and applied to one nearby, an HBCU. He was accepted and became the first in his family to attend college.

The student told me that as graduation approached, his grandmother beamed with pride. She had already purchased a flight and picked out her Sunday best for the occasion.

But three weeks before graduation, he saw his future dashed.

This young man was suspended via a campus-wide email which declared him a "threat to the campus community." When he tried to learn the reason for his suspension, he was barred from campus.

He was not afforded counsel by the college and couldn't afford counsel himself. Eventually, he found a lawyer who submitted a Freedom of Information Act request pro bono—but would do no more.

Only through the FOIA was he able to discover he had been accused of sexual harassment, but he was still denied notice of the specific allegations, and he remained suspended.

This young man was denied due process. Despondent and without options or hope, after five years of sobriety, he relapsed and attempted to take his own life.

He felt he had let down everyone who mattered to him—including, most of all, his grandmother who was so much looking forward to seeing the first member of her family don a cap and gown.

"Whatever your accusers say you are," he told me, "is what people believe you are."

That is the current reality.

Here is what it looks like: a student says he or she was sexually assaulted by another student on campus. If he or she isn't urged to keep quiet or discouraged from reporting it to local law enforcement, the case goes to a school administrator who will act as the judge and jury.

The accused may or may not be told of the allegations before a decision is rendered. If there is a hearing, both the survivor and the accused may or may not be allowed legal representation.

Whatever evidence is presented may or may not be shown to all parties. Whatever witnesses—if allowed to be called—may or may not be cross-examined. And Washington dictated that schools must use the lowest standard of proof.

And now this campus official—who may or may not have any legal training in adjudicating sexual misconduct—is expected to render a judgement. A judgement that changes the direction of both students' lives.

The right to appeal may or may not be available to either party. And no one is permitted to talk about what went on behind closed doors.

It's no wonder so many call these proceedings "kangaroo courts."

Washington's push to require schools to establish these quasi-legal structures to address sexual misconduct comes up short for far too many students.

The current system hasn't won widespread support, nor has it inspired confidence in its so-called judgments.

The results of the current approach? Everyone loses.

Some suggest that this current system, while imperfect, at least protects survivors and thus must remain untouched. But the reality is it doesn't even do that.

Survivors aren't well-served when they are re-traumatized with appeal after appeal because the failed system failed the accused. And no student should be forced to sue their way to due process.

A system is not fair when the only students who can navigate it are those whose families can afford to buy good lawyers—or any lawyer at all.

No school or university should deprive any student of his or her ability to pursue their education because the school fears shaming by—or loss of funding from—Washington.

For too long, rather than engage the public on controversial issues, the Department's Office for Civil Rights has issued letters from the desks of un-elected and un-accountable political appointees.

In doing so, these appointees failed to comply with basic legal requirements that ensure our so-called "fourth branch of government" does not run amok.

Unfortunately, school administrators tell me it has run amok. The Office for Civil Rights has "terrified" schools, one said.

Another said that no school feels comfortable calling the Department for simple advice, for fear of putting themselves on the radar and inviting an investigation.

One university leader was rightly appalled when he was asked by an Office for Civil Rights official: "Why do you care about the rights of the accused?"

Instead of working with schools on behalf of students, the prior administration weaponized the Office for Civil Rights to work against schools and against students.

One administrator summed this up clearly when he told me his staff should be "forward looking advocates for how to stop sexual misconduct."

Instead, he said, "they've been forced to be backward looking data collectors" to meet the Department's demands.

Faculty from the University of Pennsylvania's law school also voiced grave concerns about the current approach. They wrote, and I quote, "it exerts improper pressure upon universities to adopt procedures that do not afford fundamental fairness."

Too often, they wrote, "outrage at heinous crimes becomes a justification for shortcuts" in processes.

Ultimately, they concluded, "there is nothing inconsistent with a policy that both strongly condemns and punishes sexual misconduct and ensures a fair adjudicatory process."

These professors are right. The failed system imposed policy by political letter, without even the most basic safeguards to test new ideas with those who know this issue all too well.

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A Better Way Forward on Title IX Enforcement? Remarks by Education Secy Betsy DeVos at George Mason University

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