The Washington PostDemocracy Dies in Darkness

How the Trump administration’s Title IX proposals threaten to undo #MeToo

The changes would make campus sexual assault harder to punish, while increasing the burdens on black men.

Education Secretary Betsy DeVos holds a news conference at the Education Department on July 13, 2017, after a day of meetings weighing whether to keep or reject Obama-era guidance for how schools must meet their obligations under Title IX, a federal law that prohibits sex discrimination at federally funded institutions. (Evelyn Hockstein for The Washington Post)

The Trump administration is trying to change Title IX, the landmark federal legislation that prohibits discrimination in education on the basis of sex. Proponents of the changes claim that the new rules better protect the due process rights of accused students, while also addressing real, and long-standing, racial disparities in rape allegations.

In reality, however, the changes simply roll back protections for sexual assault victims, while doing nothing to actually address the issue of racial bias in rape cases. This is because the proposed changes center on a false dichotomy, one that frames civil rights for men of color and protections for rape victims as a zero-sum game. In doing so, the proposal relies on the persistent power of patriarchal white supremacy to divide the groups under its control and to frame their concerns as conflicting.

While white men have long evaded accountability for sexual misconduct, black men throughout history have faced trumped-up charges of rape. In fact, false allegations that black men raped white women have long been used to dehumanize and disenfranchise black men. In the 19th century, such claims were invoked as justification for lynching.

By portraying black men as sexually violent, white men sought to maintain racial hierarchy in a world without slavery. But they were also determined to deflect attention from years of sexual abuse they had inflicted upon enslaved black women, the living evidence of which was the mixed-raced children that many of these rapes produced. The racialization of rape terrorized black men and women while deepening white men’s control over their wives. Myths about black men’s capacity for sexual violence became firmly entrenched in the white supremacist order throughout the 20th century.

Consider, for example, the case of World War II, when the military scapegoated African American soldiers for the rapes of civilian women, while ignoring actual crimes of sexual abuse by white soldiers. The most well-known case is that of Louis Till, a GI who was executed on trumped-up charges of rape in Italy in 1945.

Throughout World War II, European women alleging rape found that they received a more sympathetic hearing in American military courts if they claimed their assailants were black and if they appealed to racist language. Although African American soldiers made up only 10 percent of American GIs, they received almost half of the convictions for rape, and 33 of the 41 men executed for sexual crimes were black.

The evidence that the United States wasn’t actually concerned about the sex crimes of its soldiers — at least the white ones — is clear from the bigger picture. More than 4 million soldiers came under the jurisdiction of American military courts in Europe between January 1942 and May 1945, but only 904 were tried on charges of rape, an improbably low number. In all countries in which American troops appeared in large numbers, women who alleged that they had been raped by white GIs were vilified as depraved, deceitful and diseased.

But the dust had hardly settled on the war when those same women were transformed by American segregationists from Nazis and “enemy aliens” into symbols of virtuous white womanhood under threat from a dangerous black sexuality. As Southern Democratic senators filibustered the Fair Employment Practices Committee during the summer of 1945, they described German women as “Christian … girls from good families” to slander the wartime contributions of African American soldiers, whom they falsely accused of widespread sexual misconduct.

After the war, the myth of black men as sexually aggressive continued to plague American society with devastating impact: In 1955, Louis Till’s son, Emmett Till, was lynched by a white mob in retaliation over false charges in Mississippi. His murder became a nationwide story and helped spark the Montgomery bus boycott.

Today, the legacy of racialized rape myths combines with the sexism of the criminal justice system to create an unjust landscape of sexual violence allegations: Rape is significantly underreported, and a disproportionate number of rape allegations concern men of color. The allegations most likely to result in conviction are those in which white women accuse black man, because such cases are the most politically palatable for those in power. Cases in which black women are raped by white men, by contrast, are underreported.

In the past 15 months, the #MeToo movement has helped shatter gender and race stereotypes by emphasizing the credibility of victims and highlighting the impunity that many powerful white men have experienced.

But #MeToo was happening at American universities long before 2017, because of Title IX and campus activism protesting sexual violence. Protests spurred by rape cases — such as the Steubenville case in 2012 and those involving Brock Turner in 2015 and Jacob Walter Anderson in 2018 — have led to a national conversation with the potential to transform the cultural and legal system in which allegations of sexual violence are currently addressed.

The proposed rollback of Title IX, however, is part of the Trump administration’s broader efforts to undo this progress and dismantle protections for victims of sexual violence. Obama-era guidelines already provide accused students with considerable protection, including the equal right to present witnesses and evidence at Title IX hearings, and the equal right to an appeal if the school chooses to provide for appeals. Many of the failures of due process currently cited by opponents have resulted from incomplete or inconsistent adherence to the Obama-era guidelines, rather than from flaws in the guidelines themselves.

In contrast, the Trump guidelines have set the bar for reporting sexual violence almost impossibly high. They define sexual assault according to the Supreme Court standard 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.” Universities will not be required to act if the incident occurs off campus (such as at privately owned fraternity houses), and the standard of proof will be higher, reverting to a “clear and convincing” standard in place of the Obama-era guidelines’ “preponderance of evidence” standard.

These new proposals exacerbate sexism and entrench a culture of impunity by undermining victims’ ability to bring forward tougher cases that implicate powerful men, especially white men, such as the university professors at the center of an ongoing controversy at Dartmouth.

And this is why the changes do little to alleviate the racism embedded in the system: With a higher standard for proving cases of sexual misconduct, black men are likely to face a disproportionate number of allegations because these cases are the only ones that will be considered “severe … and objectively offensive” enough in a society still afflicted with the legacy of racialized rape myths.

Empowering victims to speak beyond this paradigm is necessary to disrupt the association between blackness and sexual crime and to protect the most vulnerable victims — black women, disabled women and transgender women, for example — whose testimony is rarely considered credible enough to challenge the authority of white men such as Brett M. Kavanaugh. By undermining the ability of victims to come forward, pared-back Title IX provisions will reinscribe the racist status quo by limiting the kinds of cases that can be heard.

Civil rights and protections for rape victims do not come at the expense of one another. The Obama-era guidelines can be strengthened to bolster issues of due process without dismantling the protections they afford to victims of sexual violence.

The invocation of race is a stalking horse in this conversation, an example of the ways that the powerful use arguments about race and gender in bad faith. But the historic weight of racialized rape myths, and the burden of silence still borne by the most vulnerable victims, will not be lifted until powerful, white men are brought to account for their complicity in racial and sexual violence. Protecting the rights of victims to come forward is the best way to secure justice for all.