U.S. Secretary of Education Betsy Devos recently signaled her intention to change her office’s enforcement policy on Title IX, the federal civil rights law that guarantees women and girls equal access to education, and protection against sex discrimination, including sexual assault.
Devos made her intentions clear during two recent events. First, a woman who heads up Devos’ Office for Civil Rights, Candice Jackson, made a grossly inaccurate public statement declaring that 90% of campus-related sexual assaults are caused by both students being drunk. Second, Devos invited a limited group of people to D.C. to talk about Title IX, including an organization that speaks for rapists, and those who claim to have been falsely accused.
Ms. Jackson’s remark about alcohol is wrong. Most assaults happen not because BOTH students were drinking, but because ONE student chose to target a vulnerable and defenseless young woman.
Many campus offenders use drugs to incapacitate their victims; the kind that cause memory loss, because they know it’s a lot easier to beat the case if the victim cannot remember which body parts went where. This tried and true strategy has been around for a long time. Just ask Bill Cosby, whose systematic use of amnesiac drugs to render his victims incapacitated and without memory goes back decades.
In most cases, victims had been drinking before being drugged, which is why they weren’t paying careful attention to their drinks, but they weren’t drunk when the rape happened, they were drugged. Victims don’t know what being drugged feels like, so they assume they became incapacitated from the alcohol. Many don’t realize that drugs were used until long after the substances have dissipated from their body fluids. A lucky few figure out that drugs can be identified in hair tests even months later. These victims have the best shot at achieving justice in criminal court, and on campus. It’s strange that the head of an oversight agency designed to prevent sex-based offenses on college campuses doesn’t know these basic facts about the most severe form of sex-based civil rights violence.
After Jackson made her dopey comment, Devos invited rape apologists to meet with her about Title IX. This was the equivalent of inviting the KKK, along with those who claim to be have been falsely accused of racial offenses, to a meeting to talk about how she plans to address racist assaults on college campuses.
It really was that stupid.
Devos wraps her disdain for women in fake concern for “due process” rights for offenders even though she knows there are no “due process” rights for students accused of civil rights violations on college campuses. “Due process” rights apply only when the government seeks to deprive a person of liberty. Colleges are not the government, and attending college is not a protected liberty interest, to which criminal due process rights apply. Schools should, of course, be fair, but fair is not the same as due process under the law.
Concerns about the possibility of false claims as justification for the mistreatment of victims is a red herring. While false claims can happen, involving all sorts of civil rights offenses, including racial assaults, the solution to false claims is not to weaken civil rights for all women and girls, any more than the solution to welfare fraud is to make it harder for all needy families to receive food stamps.
Being fair to accused students is important, but the procedures used to determine whether sanctions are warranted against a particular student offender would be illegal if they encroached on a victim’s civil rights under Title IX. This is obviously not something Betsy Devos has the power to change, and any school that goes too far can easily be sued. Indeed, schools are successfully being sued in very high numbers for violating women’s rights by overdoing “due process” for offenders, compared to the small number of lawsuits by offenders who allege they received inadequate “due process.”
As it should be.
Devos knows that proper enforcement of Title IX on campus is mandatory, and that women and girls who suffer sexual assaults are entitled to exactly the same rights on campus as students who suffer racial or ethnic assaults. Devos can choose to spend greater or fewer resources enforcing Title IX’s regulations, but she has no authority to weaken Title IX’s strong and plain language guaranteeing women fully equal treatment, even if she frames her policy of gender subjugation as a concern for “due process” rights for offenders.
There is a silver lining here, because with Devos at the helm, victims will avoid OCR like the plague, and file more lawsuits in court, instead. And victims will likely choose state courts, rather than federal courts, because state civil rights and constitutional laws are often more protective of women’s rights than their federal counterparts. Better yet, state laws will be unaffected by Devos’ shenanigans.
So let Devos continue to denigrate women, and try to pretend that her anti-women agenda is actually a concern for offenders’ due process rights. Nobody will believe her, in part because she hasn’t once expressed concern for the “due process” rights of offenders who assault black or Muslim or Jewish students.
When an agency head supports nonexistent “due process” rights ONLY for offenders who abuse women, it is a de facto act of official discrimination, and I, for one, cannot wait to sue Betsy Devos.
Professor of sexual violence law
Wendy Murphy is adjunct professor of sexual violence law at New England Law|Boston where she has taught for fifteen years. An impact litigator whose work in state and federal courts around the country has changed the law to improve protections for women’s and children’s constitutional rights, she developed and directs several projects in conjunction with the school’s Center for Law and Social Responsibility.