After what you have seen of Ohio State football Coach Urban Meyer’s truthfulness, would you trust him to forward a sexual assault report against one of his players? Having witnessed Art Briles turn Baylor into a depraved sewer, do you think campus officials can be counted on to do the right thing by female victims? Or do they need some regulation so they don’t put winning ahead of justice? The Department of Education has weighed these questions and has a message for women on campus: You better buy some mace.
The public has 60 days to comment on U.S. Secretary of Education Betsy DeVos’s newly proposed guidelines for how schools should handle sexual assault and harassment under Title IX law. You might want to read up and give her a call if you care about other people’s daughters.
Some of what DeVos recommends makes sense, and her stated goal is perfectly fitting: to ensure “sexual violence is treated seriously” and yet ensure “a fair grievance process,” in which the rights of the accused are equally protected. The problem is that her guidelines would produce a tilt toward overcorrection, and they fail to account for some squalid realities. To know that, you only have to superimpose them over a couple of notorious recent cases.
The most squalid reality is that collegiate women are often assaulted or harassed by powerful men whom the university has a vested interest in protecting. Men such as Larry Nassar at Michigan State, a pillar of the medical school and team doctor for Olympic gymnastics. Or Jameis Winston at Florida State, the blue-chip quarterback turned admitted groper.
Yet under the new guidelines it would be more difficult than ever to file a campus complaint against any perpetrator, much less a popular one backed by a vast power structure. The very definition of sexual misconduct would be narrowed to an absurdly high standard: Unless an aggressor’s behavior was “so severe, pervasive and objectively offensive that it effectively denies” a young woman equal access to a classroom, she would have no grounds for complaint. So much for the gymnasts Nassar probed as part of his “medical treatments.”
Any case that a woman didn’t report to the right campus authorities, with the right paperwork filed to the right channels, could be discarded. It would not be enough, for instance, for a Michigan State gymnast to tell her head coach that Nassar was doing things to athletes with his ungloved hands that didn’t seem right. Or for a Baylor female athlete to send word to Briles that five of his football players gang-raped her, only for him to ask, “What was she doing around those guys” in the first place?
“What if the coach decides to keep it to himself?” asks attorney John Clune, who represented a number of Baylor victims, as well as others in high-profile collegiate cases. “It’s raising the bar to make it less likely that offenders will be found responsible.”
Throughout the new guidelines, bars are raised. A university would not be responsible for an offense that occurred outside of school property lines. Raped by a fellow student at an off-campus party? Not the school’s problem. There would never have been a campus hearing on Winston’s alleged assault of a Florida State schoolmate at his apartment. The victim’s only recourse would be a police report, with no guarantee of conviction, given how reluctant prosecutors are to bring charges. Only 10 to 30 percent of sexual assault complaints by collegians result in case filings, according to Clune.
“Many things law enforcement does real well, but sexual assaults is not one of them,” Clune says.
While an accuser waits for the legal outcomes, she would be forced to attend classes with her assailant. “Victims would be required to go to school with their rapists,” points out Nancy Hogshead-Makar, an attorney who served as an expert witness for the young woman who accused Winston and won $950,000 from Florida State in a Title IX settlement.
Campus authorities would have wide latitude in everything from selecting the standard of evidence to deciding whether to grant an appeal. DeVos recommends that the “local school leaders” should handle these cases as they see fit, and her department should “not second-guess” them.
Which will not reassure the students Michigan State, where campus officials intentionally buried a damning internal assessment of Nassar’s “treatments” that might have stopped his abuses years earlier and where Nassar’s medical school dean has been charged with serially harassing women and where former school president Lou Anna Simon has been charged with lying to police.
Maybe Title IX law and the Department of Education are the right tools for dealing with sexual violence. Maybe law enforcement should be adjudicating these cases, not campus officials. But another squalid reality is that university authorities have been interfering in the criminal justice process.
Anyone who has followed college athletics over the past decade knows that. There has been a chronic pattern of colleges sheltering powerful men from consequences, by meddling in investigations. You know the drill. The heads-up call from the friendly chief of police to the head coach. The discreet payments by athletic departments to legal “fixers.” The sudden cleansing of campus crime scenes and coordination of alibis. In Knoxville last summer, a lead detective testified angrily before a jury that his own police chief had tipped off football Coach Butch Jones on the day that two players were accused of rape. Witness interviews were foiled, and evidence perhaps was destroyed. Phone records showed the police chief and coach conferred four times on the day the alleged victim made her police report.
“That happens all the time,” Clune said. “I’m dealing with a case right now in which the police report actually states they gave a ‘courtesy call’ to the athletic director.”
The problem requires a delicate balance. Universities lack the wherewithal and expertise to adjudicate these cases in a precisely legalistic process. Yet you can’t just leave it to law enforcement either, or perpetrators will hardly ever face consequences and rapists will remain on campus. No one is happy with false-guilt cases such as Duke lacrosse in 2006 and Rolling Stone’s discredited story of a fraternity gang rape at Virginia in 2014. But no one can be happy either with the Baylors and Michigan States.
Surely student-victims should be entitled to a reassuring, untechnical reporting process that encourages them to come forward. Surely there is something better than a “so severe” standard of misconduct that a woman either has to sit in a lecture hall with her stalker or drop out. Surely university authorities should consider it their business when one student assaults another, no matter where it happens, at peril of letting rapists wander their quadrangle. And surely the Department of Education should recognize that sometimes it’s the very people in charge on campuses who can be perpetrators or enablers and their motivation is quite often to insulate themselves from liability. Therefore it’s incumbent on her department to enforce some standards.
An overcorrection of an overcorrection is not the answer.
For more by Sally Jenkins, visit washingtonpost.com/jenkins.