December 19, 2018

GUEST ROOM | Cornell Must Stand Up to Betsy DeVos’ Title IX

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For the past 680 days, I, along with many other Cornell students, have been struggling to wrap my head around how Betsy DeVos found herself as Secretary of Education — especially after heading the All Children Matter PAC which received widespread criticism for interfering with state elections. On November 16, DeVos announced the Department of Education’s highly anticipated overhaul of Title IX, the 1972 law detailing sexual assault and prohibiting federal funded universities from discriminating on the basis of sex.

Her reforms consist of four major changes aimed at bettering due process for persons accused of sexual misconduct. The first of which redefines sexual harassment, the second requires more concrete evidence when arbitrating sexual misconduct cases, the third allows universities to disregard Title IX cases that occur off campus property and the fourth requires cross-examination to be a part of live hearings at the post-secondary level.

Obama Administration Title IX guidance defined sexual harassment as any “unwelcome conduct of a sexual nature.” This definition is fairly clear — if it is unwanted, it is harassment. DeVos’ proposed amendments not only significantly narrow and blur this definition, rewriting it as “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 or activity,” but it makes the statement stronger by enforcing it as legal code. This new definition removes support from survivors and invalidates their experiences. It leaves the interpretation of the survivor’s feelings and effects from their trauma entirely up to a third party. What kind of precedent does this set?

Further, by granting this much power in determining what is characterized as harassment to a university, the door is opened for inherent bias to play a role in determining what is indeed sexual harassment. This has the potential to lead to an increase in people of color being silenced as university officials will be able to hide discrimination, because they decide in which cases an offense is “severe” enough. This new definition may also lead to the past sexual history of the accuser being taken into account during the adjudication of their cases — something that has no place in determining the validity of the accusation.

For most civil rights cases, there is a precedent for a preponderance of the evidence to be used during arbitration. DeVos’ Title IX amendments call for the standard of evidence to be increased to that of a criminal case. Michael Nietzel, Forbes contributor and former Missouri State University President, points out perfectly in a recent Forbes article that this would shift the balance in favor of the accused whereas the previous evidence standard granted no advantage to either party.

But beyond this, it is incredibly disheartening to see a recently appointed Supreme Court Justice Brett Kavanaugh support this change following his own #MeToo moment. There was certainly a preponderance of evidence against Kavanaugh presented at his September hearing. From the multiple accusations that arose to Justice Kavanaugh’s lack of a coherent defense (really only presenting a collection of incomplete calendars and letting us all know that he likes to drink beer with his friends), there really isn’t any question that had his hearing been a campus Title IX dispute, it would have been adjudicated in favor of his accusers. Justice Kavanaugh’s support confirms everything we feared about him and points more to his general disregard for the narratives of survivors and support for the rights of the accused.

The final two proposed changes follow a similar pattern of taking agency away from survivors. By not requiring universities to pursue cases that didn’t occur on campus or as a part of university events, it skews statistics even more than they already are. Sexual assault is already under-reported on campuses. This is especially true when looking at a campus like our own where many social events that aren’t in some way regulated by the university are held off-campus in Collegetown.

Finally, while cross-examination is largely considered by legal experts as the number one truth teller in a case, by permitting parties to cross-examine each other, a socioeconomic inequity is promoted in Title IX cases. The proposed rule would allow for both parties to use outside legal representation to conduct the required cross-examinations. Thinking about this in the context of Greek Life is incredibly appalling. There have been plenty of assaults that have occurred at wealthy fraternities on Cornell’s campus. If DeVos’ amendments are put into effect, those chapters are likely to hire high-brow lawyers to defend their members in a Title IX hearing should one arise. Additionally, there is no possible way that DeVos can ensure that trauma will not fall onto survivors because of these cross-examinations. The accused’s agent conducting the cross-examination, especially in cases where the agents are successful, and expensive, trial lawyers, will surely use their education and general life experience to dismiss the experiences of young survivors.

With these amendments in effect, it would be entirely up to universities as to what would happen. The policy, as far as we can see, takes away liability from universities. Cornell is the perfect university for these changes — the large off-campus social scene, rich Greek life alumni, plus many more factors make it so. Cornell has a responsibility to its survivors of sexual misconduct to forcibly reject these amendments and do everything in its power to stop them from being enacted. They are running out of time before they may be forced to utilize accused-favored tactics regarding Title IX cases.

 

Peter Buonanno is a sophomore in the College of Arts and Sciences. He currently serves as an assistant arts & entertainment editor in The Sun’s board. He can be reached at pbuonanno@cornellsun.com.