Why Social Workers Should Care about Changes to Title IX under Trump

Why Social Workers Should Care about Changes to Title IX under Trump The United States is in the middle of a debate about how to address sexual misconduct on college and university campuses. On September 22, 2017, Education Secretary Betsy DeVos and the U.S. Department of Education’s [ED’s] Office for Civil Rights rolled back influential Obama-era guidance regulating school investigations of sexual misconduct (ED, 2017). These rollbacks responded to demands for greater due process for those accused of sexual misconduct, arguably at the cost of protecting victims (Know Your IX, 2017). Despite social work’s identity as a profession firmly rooted in social justice, gender equality, and advocacy, the social work voice has remained largely absent from the Title IX debate. A search in journals published by the National Association of Social Workers (NASW) revealed only one article related to Title IX in the past five years. Although NASW withheld support for DeVos’s confirmation in early 2017, it has yet to release a statement or put out a call to action regarding DeVos’s stance on Title IX. In this commentary, I briefly summarize Title IX as it relates to campus sexual misconduct, outline how DeVos’s new guidelines threaten to weaken the fight against campus sexual misconduct, and assert that social workers have a stake in the Title IX debate. What Is Title IX, and How Does It Apply to Sexual Misconduct? Title IX of the Civil Rights Act states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal assistance” (Title IX, 1972, p. 1). Historically passed to mandate gender equality in college athletics, Title IX has more recently been applied to protecting students from sexual misconduct based on the argument that “sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination” that deprives victims of their fundamental right to education (ED, 2011, p. 1). Examples of sexual harassment in this context include “unwanted sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature” (ED, 2011, p. 3). Sexual harassment may occur between individuals of any gender, gender identity, or sexual orientation, but victims are disproportionately women and individuals in the lesbian, gay, bisexual, transgender, and queer community (Cantor et al., 2015). Under Title IX, schools are required to take action against sex discrimination by investigating and enforcing consequences for sexual misconduct. School investigations are independent of any criminal investigation that may take place concurrently, and they do not determine guilt or innocence under the law. Instead, they enable schools to make evidence-based determinations about whether or not sexual misconduct occurred so that they can promptly eliminate further threats to the campus community and remediate harm to the victim (ED, 2014). Investigations typically involve fact finding, determining whether misconduct occurred based on a standard of evidence, administering sanctions, and implementing protections for victims (ED, 2014). Changes to Title IX under Trump The Obama administration took an unprecedented stance against campus sexual misconduct by imposing stringent new requirements for Title IX investigations, mandating rigorous enforcement, and linking compliance with federal funding (Brodsky, 2017; ED, 2011, 2014). Victims and their advocates praised these changes but pushed for further reform, pointing to the lengthy investigations, unsupportive administrations, confusing policies, and lack of transparency that still characterized Title IX investigations at many schools (see, for example, Know Your IX, 2017). Due-process advocates and men’s rights groups maintained that the Obama administration had gone too far, stating that respondents should be granted due process rights more closely akin to legal proceedings (see, for example, Foundation for Individual Rights in Education, 2017). The latest guidelines released by Trump and DeVos’s ED appear to be responding to this backlash, rolling back some of the Obama administration’s requirements at the risk of exposing victims to further harm. The specific changes outlined by the new guidelines are summarized in Table 1, presented side-by-side with the older Obama-era guidelines for comparison. Table 1: Old versus New Guidance for Title IX Sexual Misconduct Investigations Guideline Old Guidance New Guidance Argument for the Change Argument against the Change Informal resolution (for example, mediation) May not be used for complaints of sexual assault. May be used for any complaint. Avoids the time, energy, and emotional costs of formal investigations. Administrators may push mediation when it is not in victim’s best interest. Standard of proof Must use “preponderance of evidence” standard (50.1% likelihood misconduct occurred). May choose “clear and convincing” standard (75% likelihood misconduct occurred). Less risk of substantiating false accusations. More difficult to substantiate misconduct that did occur. Time frame for completing investigations 60 days suggested time frame. No fixed time frame. Less pressure to rush investigations, particularly in complex cases. Long investigations leave all parties “in limbo” and keep campus at risk. Appeal processes Offered to both complainant and respondent. May be offered only to the respondent. Avoids “double jeopardy”—accused will not be subjected to continued investigation once they are found not responsible. Allows schools to deny victims the right to appeal, providing more process to accused than victims. Direct cross-examination Strongly discouraged. Questions should be asked through an intermediary rather than directly. Permitted. Due process protections for accused. Direct questioning by their perpetrator exposes victims to secondary trauma. Guideline Old Guidance New Guidance Argument for the Change Argument against the Change Informal resolution (for example, mediation) May not be used for complaints of sexual assault. May be used for any complaint. Avoids the time, energy, and emotional costs of formal investigations. Administrators may push mediation when it is not in victim’s best interest. Standard of proof Must use “preponderance of evidence” standard (50.1% likelihood misconduct occurred). May choose “clear and convincing” standard (75% likelihood misconduct occurred). Less risk of substantiating false accusations. More difficult to substantiate misconduct that did occur. Time frame for completing investigations 60 days suggested time frame. No fixed time frame. Less pressure to rush investigations, particularly in complex cases. Long investigations leave all parties “in limbo” and keep campus at risk. Appeal processes Offered to both complainant and respondent. May be offered only to the respondent. Avoids “double jeopardy”—accused will not be subjected to continued investigation once they are found not responsible. Allows schools to deny victims the right to appeal, providing more process to accused than victims. Direct cross-examination Strongly discouraged. Questions should be asked through an intermediary rather than directly. Permitted. Due process protections for accused. Direct questioning by their perpetrator exposes victims to secondary trauma. Table 1: Old versus New Guidance for Title IX Sexual Misconduct Investigations Guideline Old Guidance New Guidance Argument for the Change Argument against the Change Informal resolution (for example, mediation) May not be used for complaints of sexual assault. May be used for any complaint. Avoids the time, energy, and emotional costs of formal investigations. Administrators may push mediation when it is not in victim’s best interest. Standard of proof Must use “preponderance of evidence” standard (50.1% likelihood misconduct occurred). May choose “clear and convincing” standard (75% likelihood misconduct occurred). Less risk of substantiating false accusations. More difficult to substantiate misconduct that did occur. Time frame for completing investigations 60 days suggested time frame. No fixed time frame. Less pressure to rush investigations, particularly in complex cases. Long investigations leave all parties “in limbo” and keep campus at risk. Appeal processes Offered to both complainant and respondent. May be offered only to the respondent. Avoids “double jeopardy”—accused will not be subjected to continued investigation once they are found not responsible. Allows schools to deny victims the right to appeal, providing more process to accused than victims. Direct cross-examination Strongly discouraged. Questions should be asked through an intermediary rather than directly. Permitted. Due process protections for accused. Direct questioning by their perpetrator exposes victims to secondary trauma. Guideline Old Guidance New Guidance Argument for the Change Argument against the Change Informal resolution (for example, mediation) May not be used for complaints of sexual assault. May be used for any complaint. Avoids the time, energy, and emotional costs of formal investigations. Administrators may push mediation when it is not in victim’s best interest. Standard of proof Must use “preponderance of evidence” standard (50.1% likelihood misconduct occurred). May choose “clear and convincing” standard (75% likelihood misconduct occurred). Less risk of substantiating false accusations. More difficult to substantiate misconduct that did occur. Time frame for completing investigations 60 days suggested time frame. No fixed time frame. Less pressure to rush investigations, particularly in complex cases. Long investigations leave all parties “in limbo” and keep campus at risk. Appeal processes Offered to both complainant and respondent. May be offered only to the respondent. Avoids “double jeopardy”—accused will not be subjected to continued investigation once they are found not responsible. Allows schools to deny victims the right to appeal, providing more process to accused than victims. Direct cross-examination Strongly discouraged. Questions should be asked through an intermediary rather than directly. Permitted. Due process protections for accused. Direct questioning by their perpetrator exposes victims to secondary trauma. The new guidelines are interim guidelines, intended to act as placeholders for evaluating school compliance with Title IX until promised permanent legislation is finalized. It is noteworthy that schools are not yet mandated to make any changes to their current procedures and instead have the option of adopting the new interim guidelines if they choose to. Some schools (for example, University of California, Washington University of St. Louis) have already issued statements expressing concern that the new guidelines undermine progress made in recent years and vowing their commitment to fighting sexual misconduct. However, the overarching message sent by the ED is clear: The Trump administration will not be following Obama’s lead when it comes to addressing campus sexual misconduct. A Call to Action for Social Work Title IX investigations do need reform, but adapting them to align more closely with the criminal justice system, as DeVos’s ED is doing, is not the answer. Schools must offer an alternate forum for adjudicating and addressing sexual misconduct that avoids some of the humiliation and frustration victims of sexual assault experience when they report to the criminal justice system. Otherwise, victims will be deterred from reporting, sexual misconduct will go unchecked, and schools will be unable to effectively protect their communities from risk (Brodsky, 2017). The ED has not set a time frame for issuing permanent Title IX guidelines and will meanwhile meet with stakeholders in a “notice and comment” process. This means that there is still time for action before permanent legislation is set. I argue that social workers should take a stance against DeVos and her attacks on Title IX for the following reasons. First, we have an ethical responsibility to speak out against gender discrimination that compromises access to education (NASW, 2017). Second, as members of a profession that advocates for those who have been marginalized, we should be leaders in advocating for victims of sexual misconduct. Finally, we must protect our social work student population, which is still predominantly female and, therefore, disproportionately more likely to experience sexual violence. The health of our profession, and of our society, depends on all students having equal access to educational opportunities, free from sexual harassment and assault. References Brodsky , A. ( 2017 ). A rising tide: Learning about fair disciplinary process from Title IX . Journal of Legal Education, 66 , 822 – 849 . Cantor , D. , Fisher , B. , Chibnall , S. H. , Townsend , R. , Lee , H. , Bruce , C. , & Thomas , G. ( 2015 ). Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct . Washington, DC : Association of American Universities . Foundation for Individual Rights in Education. ( 2017 ). Spotlight on due process 2017: Executive summary. Retrieved from https://www.thefire.org/due-process-report-2017/ Know Your IX . ( 2017 ). New Title IX interim guidance betrays survivors of campus sexual assault. Retrieved from https://www.knowyourix.org/interim-guidance-statement/ National Association of Social Workers . ( 2017 ). Code of ethics of the National Association of Social Workers . Washington, DC : Author . PubMed PubMed Title IX ( 1972 ). 20 U.S.C. § 1681. U.S. Department of Education . ( 2011 ). Dear colleague letter. Retrieved from https://www2.ed.gov/print/about/offices/list/ocr/letters/colleague-201104.html U.S. Department of Education . ( 2014 ). Questions and answers on Title IX and sexual violence. Retrieved from https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf U.S. Department of Education . ( 2017 ). Q&A on campus sexual misconduct. Retrieved from https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf © 2018 National Association of Social Workers This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Social Work Oxford University Press

Why Social Workers Should Care about Changes to Title IX under Trump

Social Work , Volume Advance Article (3) – Apr 27, 2018

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Oxford University Press
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© 2018 National Association of Social Workers
ISSN
0037-8046
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1545-6846
D.O.I.
10.1093/sw/swy021
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Abstract

The United States is in the middle of a debate about how to address sexual misconduct on college and university campuses. On September 22, 2017, Education Secretary Betsy DeVos and the U.S. Department of Education’s [ED’s] Office for Civil Rights rolled back influential Obama-era guidance regulating school investigations of sexual misconduct (ED, 2017). These rollbacks responded to demands for greater due process for those accused of sexual misconduct, arguably at the cost of protecting victims (Know Your IX, 2017). Despite social work’s identity as a profession firmly rooted in social justice, gender equality, and advocacy, the social work voice has remained largely absent from the Title IX debate. A search in journals published by the National Association of Social Workers (NASW) revealed only one article related to Title IX in the past five years. Although NASW withheld support for DeVos’s confirmation in early 2017, it has yet to release a statement or put out a call to action regarding DeVos’s stance on Title IX. In this commentary, I briefly summarize Title IX as it relates to campus sexual misconduct, outline how DeVos’s new guidelines threaten to weaken the fight against campus sexual misconduct, and assert that social workers have a stake in the Title IX debate. What Is Title IX, and How Does It Apply to Sexual Misconduct? Title IX of the Civil Rights Act states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal assistance” (Title IX, 1972, p. 1). Historically passed to mandate gender equality in college athletics, Title IX has more recently been applied to protecting students from sexual misconduct based on the argument that “sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination” that deprives victims of their fundamental right to education (ED, 2011, p. 1). Examples of sexual harassment in this context include “unwanted sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature” (ED, 2011, p. 3). Sexual harassment may occur between individuals of any gender, gender identity, or sexual orientation, but victims are disproportionately women and individuals in the lesbian, gay, bisexual, transgender, and queer community (Cantor et al., 2015). Under Title IX, schools are required to take action against sex discrimination by investigating and enforcing consequences for sexual misconduct. School investigations are independent of any criminal investigation that may take place concurrently, and they do not determine guilt or innocence under the law. Instead, they enable schools to make evidence-based determinations about whether or not sexual misconduct occurred so that they can promptly eliminate further threats to the campus community and remediate harm to the victim (ED, 2014). Investigations typically involve fact finding, determining whether misconduct occurred based on a standard of evidence, administering sanctions, and implementing protections for victims (ED, 2014). Changes to Title IX under Trump The Obama administration took an unprecedented stance against campus sexual misconduct by imposing stringent new requirements for Title IX investigations, mandating rigorous enforcement, and linking compliance with federal funding (Brodsky, 2017; ED, 2011, 2014). Victims and their advocates praised these changes but pushed for further reform, pointing to the lengthy investigations, unsupportive administrations, confusing policies, and lack of transparency that still characterized Title IX investigations at many schools (see, for example, Know Your IX, 2017). Due-process advocates and men’s rights groups maintained that the Obama administration had gone too far, stating that respondents should be granted due process rights more closely akin to legal proceedings (see, for example, Foundation for Individual Rights in Education, 2017). The latest guidelines released by Trump and DeVos’s ED appear to be responding to this backlash, rolling back some of the Obama administration’s requirements at the risk of exposing victims to further harm. The specific changes outlined by the new guidelines are summarized in Table 1, presented side-by-side with the older Obama-era guidelines for comparison. Table 1: Old versus New Guidance for Title IX Sexual Misconduct Investigations Guideline Old Guidance New Guidance Argument for the Change Argument against the Change Informal resolution (for example, mediation) May not be used for complaints of sexual assault. May be used for any complaint. Avoids the time, energy, and emotional costs of formal investigations. Administrators may push mediation when it is not in victim’s best interest. Standard of proof Must use “preponderance of evidence” standard (50.1% likelihood misconduct occurred). May choose “clear and convincing” standard (75% likelihood misconduct occurred). Less risk of substantiating false accusations. More difficult to substantiate misconduct that did occur. Time frame for completing investigations 60 days suggested time frame. No fixed time frame. Less pressure to rush investigations, particularly in complex cases. Long investigations leave all parties “in limbo” and keep campus at risk. Appeal processes Offered to both complainant and respondent. May be offered only to the respondent. Avoids “double jeopardy”—accused will not be subjected to continued investigation once they are found not responsible. Allows schools to deny victims the right to appeal, providing more process to accused than victims. Direct cross-examination Strongly discouraged. Questions should be asked through an intermediary rather than directly. Permitted. Due process protections for accused. Direct questioning by their perpetrator exposes victims to secondary trauma. Guideline Old Guidance New Guidance Argument for the Change Argument against the Change Informal resolution (for example, mediation) May not be used for complaints of sexual assault. May be used for any complaint. Avoids the time, energy, and emotional costs of formal investigations. Administrators may push mediation when it is not in victim’s best interest. Standard of proof Must use “preponderance of evidence” standard (50.1% likelihood misconduct occurred). May choose “clear and convincing” standard (75% likelihood misconduct occurred). Less risk of substantiating false accusations. More difficult to substantiate misconduct that did occur. Time frame for completing investigations 60 days suggested time frame. No fixed time frame. Less pressure to rush investigations, particularly in complex cases. Long investigations leave all parties “in limbo” and keep campus at risk. Appeal processes Offered to both complainant and respondent. May be offered only to the respondent. Avoids “double jeopardy”—accused will not be subjected to continued investigation once they are found not responsible. Allows schools to deny victims the right to appeal, providing more process to accused than victims. Direct cross-examination Strongly discouraged. Questions should be asked through an intermediary rather than directly. Permitted. Due process protections for accused. Direct questioning by their perpetrator exposes victims to secondary trauma. Table 1: Old versus New Guidance for Title IX Sexual Misconduct Investigations Guideline Old Guidance New Guidance Argument for the Change Argument against the Change Informal resolution (for example, mediation) May not be used for complaints of sexual assault. May be used for any complaint. Avoids the time, energy, and emotional costs of formal investigations. Administrators may push mediation when it is not in victim’s best interest. Standard of proof Must use “preponderance of evidence” standard (50.1% likelihood misconduct occurred). May choose “clear and convincing” standard (75% likelihood misconduct occurred). Less risk of substantiating false accusations. More difficult to substantiate misconduct that did occur. Time frame for completing investigations 60 days suggested time frame. No fixed time frame. Less pressure to rush investigations, particularly in complex cases. Long investigations leave all parties “in limbo” and keep campus at risk. Appeal processes Offered to both complainant and respondent. May be offered only to the respondent. Avoids “double jeopardy”—accused will not be subjected to continued investigation once they are found not responsible. Allows schools to deny victims the right to appeal, providing more process to accused than victims. Direct cross-examination Strongly discouraged. Questions should be asked through an intermediary rather than directly. Permitted. Due process protections for accused. Direct questioning by their perpetrator exposes victims to secondary trauma. Guideline Old Guidance New Guidance Argument for the Change Argument against the Change Informal resolution (for example, mediation) May not be used for complaints of sexual assault. May be used for any complaint. Avoids the time, energy, and emotional costs of formal investigations. Administrators may push mediation when it is not in victim’s best interest. Standard of proof Must use “preponderance of evidence” standard (50.1% likelihood misconduct occurred). May choose “clear and convincing” standard (75% likelihood misconduct occurred). Less risk of substantiating false accusations. More difficult to substantiate misconduct that did occur. Time frame for completing investigations 60 days suggested time frame. No fixed time frame. Less pressure to rush investigations, particularly in complex cases. Long investigations leave all parties “in limbo” and keep campus at risk. Appeal processes Offered to both complainant and respondent. May be offered only to the respondent. Avoids “double jeopardy”—accused will not be subjected to continued investigation once they are found not responsible. Allows schools to deny victims the right to appeal, providing more process to accused than victims. Direct cross-examination Strongly discouraged. Questions should be asked through an intermediary rather than directly. Permitted. Due process protections for accused. Direct questioning by their perpetrator exposes victims to secondary trauma. The new guidelines are interim guidelines, intended to act as placeholders for evaluating school compliance with Title IX until promised permanent legislation is finalized. It is noteworthy that schools are not yet mandated to make any changes to their current procedures and instead have the option of adopting the new interim guidelines if they choose to. Some schools (for example, University of California, Washington University of St. Louis) have already issued statements expressing concern that the new guidelines undermine progress made in recent years and vowing their commitment to fighting sexual misconduct. However, the overarching message sent by the ED is clear: The Trump administration will not be following Obama’s lead when it comes to addressing campus sexual misconduct. A Call to Action for Social Work Title IX investigations do need reform, but adapting them to align more closely with the criminal justice system, as DeVos’s ED is doing, is not the answer. Schools must offer an alternate forum for adjudicating and addressing sexual misconduct that avoids some of the humiliation and frustration victims of sexual assault experience when they report to the criminal justice system. Otherwise, victims will be deterred from reporting, sexual misconduct will go unchecked, and schools will be unable to effectively protect their communities from risk (Brodsky, 2017). The ED has not set a time frame for issuing permanent Title IX guidelines and will meanwhile meet with stakeholders in a “notice and comment” process. This means that there is still time for action before permanent legislation is set. I argue that social workers should take a stance against DeVos and her attacks on Title IX for the following reasons. First, we have an ethical responsibility to speak out against gender discrimination that compromises access to education (NASW, 2017). Second, as members of a profession that advocates for those who have been marginalized, we should be leaders in advocating for victims of sexual misconduct. Finally, we must protect our social work student population, which is still predominantly female and, therefore, disproportionately more likely to experience sexual violence. The health of our profession, and of our society, depends on all students having equal access to educational opportunities, free from sexual harassment and assault. References Brodsky , A. ( 2017 ). A rising tide: Learning about fair disciplinary process from Title IX . Journal of Legal Education, 66 , 822 – 849 . Cantor , D. , Fisher , B. , Chibnall , S. H. , Townsend , R. , Lee , H. , Bruce , C. , & Thomas , G. ( 2015 ). Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct . Washington, DC : Association of American Universities . Foundation for Individual Rights in Education. ( 2017 ). Spotlight on due process 2017: Executive summary. Retrieved from https://www.thefire.org/due-process-report-2017/ Know Your IX . ( 2017 ). New Title IX interim guidance betrays survivors of campus sexual assault. Retrieved from https://www.knowyourix.org/interim-guidance-statement/ National Association of Social Workers . ( 2017 ). Code of ethics of the National Association of Social Workers . Washington, DC : Author . PubMed PubMed Title IX ( 1972 ). 20 U.S.C. § 1681. U.S. Department of Education . ( 2011 ). Dear colleague letter. Retrieved from https://www2.ed.gov/print/about/offices/list/ocr/letters/colleague-201104.html U.S. Department of Education . ( 2014 ). Questions and answers on Title IX and sexual violence. Retrieved from https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf U.S. Department of Education . ( 2017 ). Q&A on campus sexual misconduct. Retrieved from https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf © 2018 National Association of Social Workers This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Social WorkOxford University Press

Published: Apr 27, 2018

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