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January 31 2019

Comment to the Department of Education on Proposed Changes to Title IX Enforcement

by Inez Feltscher Stepman

Independent Women’s Forum submitted comment to the Department of Education on the proposed changes to Title IX enforcement. The proposed rule, if implemented, will positively affect how sexual assault and harassment is handled on college campuses across the country, making the process fairer for both accuser and accused.

The new rule makes three types major changes: it ensures that policies against sexual harassment are really aimed at harassment, and not at Constitutionally-protected free speech, it appropriately limits the jurisdiction of Title IX to the campus and official activities, and it makes the sexual assault adjudication process fairer and more just to both accuser and accused.

The rule does this by introducing more due process safeguards into what, for the last several years, can only be described as kangaroo courts. Basic procedural mainstays like cross-examination (by counsel or other representative, not the accused) are reintroduced, and the rule encourages, but does not require, that the evidentiary standard be raised from “preponderance of the evidence” – which is just lawyer-talk for “more likely to have happened than not” – to “clear and convincing,” a higher burden of proof.

While some other comments assail these common-sense changes as bad for women or for victims, the reality is that due process protects everyone. Sexual assault is an incredibly serious crime, and should be treated as such. But it is because we treat sexual assault so seriously that we must ensure that the guilty, and not the innocent, are punished for it.

A excerpt of our comment to the Department is available below.

“We would like to thank the Department for proposing to revise the Title IX rules.

Instead of focusing on fairness and justice, the previous guidance jeopardized free speech and due process rights for college students across America.

The guidance on offer in the 2011 Dear Colleague letter was not working for victims, accused students, or universities. As evidence of that failure, we need look no further than the hundreds of federal court cases universities have had to settle with students, “convicted” through the university process, and later vindicated in a real court of law. These guidelines were so vague, the roles of accused and accuser could be determined by which student involved in an incident hit the school’s Title IX office first the following morning.

…The Department advanced fairness by changing several aspects of its guidance on how universities ought to conduct sexual assault investigations. By nature, universities are ill-equipped to handle criminal assault charges compared with the police. If universities are going to deal with serious charges like sexual assault, however, it is critical that the sanctions they wield, which often can ruin a life forever, are applied only after a fair process to determine facts and guilt…

Women have nothing to fear from the proposed rule changes. A fair process does not disadvantage victims of sexual assault. Women have a direct interest in ensuring that these incredibly serious allegations are handled in a way that respects due process and the rights of the accused, as well as seeks justice for victims. 

Thank you for proposing changes to Title IX enforcement that will make the process fairer for everyone.”

IWF’s full comment can be found on the Department of Education website, or here.


 



Independent Women's Forum is an educational 501(c)(3) dedicated to developing and advancing policies that aren’t just well intended, but actually enhance people’s freedom, choices, and opportunities. IWF is the sister organization of the Independent Women’s Voice.​
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