Outrage at the Department of Education's rollbacks of Obama-era Title IX protections for university students who are victims of sexual assault came to a head Wednesday when Candice E. Jackson, head of the department's Office of Civil Rights, said 90 percent of sexual assault accusations on campuses "fall into the category of 'we were both drunk.' " The incident drew responses from students and faculty across the country.
The department has made a number of changes to the way it handles investigations of sexual assault on campuses since Betsy DeVos was confirmed as Secretary of Education by a tie-breaking vote from Vice President Mike Pence in February. According to an internal department memo sent by Jackson, the OCR will scale back investigations into systemic issues of campus sexual assault and the department has made clear it will give an equal platform to those accused of sexual assault as well as the victims.
Although a decision is yet to be made on the issue, many people are wondering whether Jackson will rescind the Obama administration's 2011 "Dear Colleague" letter, which emphasized Title IX's explicit prohibition of discrimination “on the basis of sex in education programs or activities operated by recipients of Federal financial assistance," serving as a warning to colleges and universities that they would lose federal funding if they failed to comply with the new, stricter guidelines.
The most major and controversial provision in the letter, however, was the mandate directing universities to adopt a "preponderance of the evidence" standard in sexual assault investigations, meaning the claim has to be more likely true than not for a finding of wrongdoing. Advocates for the accused and men's rights groups are pushing Jackson to return to the higher "clear and convincing" standard, which falls between the preponderance standard and the "beyond a reasonable doubt" standard used in criminal investigations.
Jackson said in an interview with The New York Times the investigation and disciplinary process as it exists is improperly weighted in favor of the plaintiff and should be modeled to more closely resemble the criminal process.
"We have a justice system where nobody demands that the system itself be weighted in favor of a plaintiff,” she said. “In principle, there is no reason to depart from setting up a Title IX discipline process on campus that is anything other than fairly balanced and doesn’t prejudge and weight the system in favor of a finding. We don’t do that in our court system, our criminal justice system, and I see no reason why we would want to do it in a campus system either.”
Elizabeth Armstrong, University of Michigan professor of sociology, disagreed with Jackson's characterization, however. Armstrong, who is currently conducting a study on the Title IX compliance of hundreds of colleges and universities across the country, said there are important differences between criminal investigations and campus adjudication processes.
"The criminal justice system is set up to protect the accused because of the gravity of the sanction of incarceration,” she said. “The most serious sanction available to the university is expulsion. The goal of sexual misconduct adjudication processes is to ensure that all students have full access to education without experiencing discrimination on the basis of sex. The responsibility of the university is to ensure this through education and, in some cases, expelling some individuals from the community. It is of critical importance that both the claimant and the respondent are treated fairly in the process, and universities are, I think, trying very hard to do so."
Given both the university responsibility to create a climate free from discrimination and the limited ability to sanction, Armstrong said, the preponderance of the evidence standard is appropriate.
And while Jackson later apologized for her "90 percent" comment, saying "all sexual harassment and sexual assault must be taken seriously," many say it's too late for an apology.
In an email, Rackham student Miriam Gleckman-Krut — a Ph.D. student in sociology and a researcher on Armstrong's study — referened a fact sheet published by the National Sexual Violence Resource Center. Gleckman-Krut wrote Jackson's comment perpetuated longstanding and harmful myths about sexual assault.
"A vast majority of sexual assault reports are genuine," she wrote. "Ms. Jackson should not have characterized a single report as suspect or illegitimate, let alone 90 percent of them. This reflects a deeply troubling and false assumption about survivors, one that I am horrified to see reiterated by our nation's leaders."
Gleckman-Krut pointed out how Jackson's memo reveals she sees campus sexual assault as an isolated, case-by-case issue rather than a systemic one, a sentiment which Gleckman-Krut disagrees with.
"Her action and statements reflect an assumption that incidents of campus sexual misconduct are cases of 'bad apples,' not longstanding institutional failures to protect whole categories of students," Gleckman-Krut wrote. "Rates of campus sexual violence remain unchanged over the past forty years — roughly one in four women is sexually assaulted while in college…This violence is not random. Armstrong et al. (2006) find that ‘party rape’ is a ‘predictable outcome’ of, among other things, university institutional arrangements. Campus sexual violence is a systemic issue."
And it remains an issue on the University's campus as well — according to a 2015 school-wide climate survey, which received responses from a representative sample of over 2,000 students, only 3.6% of students who had at least one unwanted sexual experience reported the incident to an official University resource or law enforcement. According to Armstrong, that low number is despite the University's "assumption of good faith reporting" policy, which, according to Armstrong, is "exemplary".
The policy, designed to encourage victims and witnesses to come forward without fear of retaliation, states even if a report cannot be substantiated, the assumption will continue to be that it was made in good faith. Many of the 382 colleges and universities Armstrong is studying are worse off, she says.
"We have indeed found shocking examples of non-compliance," she said. "Some universities hired their first Title IX coordinators in the last few years. Some universities to this day have little to nothing on paper that might constitute a sexual misconduct policy. There are universities that provide limited information on what students should do if assaulted."
And while Armstrong and Gleckman-Krut are still trying to sift through colleges' and universities' Title IX shortcomings under current policies, those policies are changing rapidly, and students on campus worry they will now have to fight to protect what they were before trying to improve.
The Michigan Student Power Network, a student activism group, posted several videos of students at universities across the state discussing their opposition to the recent rollbacks of Title IX protections. Kelly, a senior at the University, said those protections need to be expanded, not rolled back.
"I think we've definitely all in our experience on campus seen the need for Title IX, just in the sheer number of cases that are reported at U of M every year, and Title IX really offers a way for students to bring those cases to the administration," she said. "So while we already see the need to expand those protections, now we're having to fight against the administration taking them away, as far as funding and resources and schools."