Editor’s note: Once a month, the National Interest column will tackle broader questions about what the country should do to increase educational opportunities for black youths.
The New York Times’ explosive revelations of Harvey Weinstein’s three-decades-long career of sexual assault laid bare the prevalence of rape culture in our society. Sexism is a national problem and deserves a commensurate response from our leaders. Our current systems—including those in colleges and universities—protect powerful men and permit rape culture to continue.
The Weinstein case highlights how poorly Education Secretary Betsy DeVos’ policies on sex discrimination and assault meet the needs of women.
In late September, DeVos rescinded an Obama directive, also known as the “Dear Colleague Letter” (pdf), on how campuses should handle sexual assaults under Title IX, the federal policy on sexual discrimination. The letter reminded campus officials that they were responsible for preventing sexual harassment and violence, and provided examples of remedies and enforcement strategies. DeVos repealed the Obama policy largely based on a defense of people wrongfully accused of sexual assault.
“There are men and women, boys and girls, who are survivors,” DeVos said in her speech on Title IX in September. “And there are men and women, boys and girls who are wrongfully accused.”
Incredibly, DeVos used an “All victims matter” rationale to rescind the Obama directive. The speciousness of this argument is made apparent by the fact that not once did she utter the word “sexism” in her prepared remarks.
The Weinstein case—and the subsequent waves of disclosures about men in power that continue to break—should force DeVos to confront what she obviously ignored in her argument for repeal: Powerful institutions (especially those led by men) ignore women’s accounts of being harassed, abused and assaulted.
Worse, they are so hostile toward women and so protective of influential men that victims are scared to speak out. Witness all the accounts of women who stayed silent about the assaults and harassment for decades, or those who spoke up and say they experienced retaliation—all while Weinstein sat untouched atop a Miramax empire.
If it wasn’t evident to DeVos earlier, it should be clear now: She needs a do-over. As more and more women come forward, DeVos should hear the cries of sexual assault victims and actually make Title IX more about addressing systems and less about finding some weird moral equivalency between victims and accusers.
Two months before DeVos rescinded the guidance, Candice E. Jackson, DeVos’ acting assistant secretary for civil rights in the Department of Education, told the New York Times that 90 percent of sexual assault complaints “fall into the category of ‘We were both drunk,’ ‘We broke up, and six months later, I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.’”
After widespread outrage at the suggestion that women were equally culpable in most sexual assault cases on campus, Jackson apologized. She has since walked back her statement a bit, stating before a Senate panel last week, “It’s unproductive to speak in terms of false accusations.”
According to the Dear Colleague Letter issued by the department that DeVos now leads, there were “4,000 reported incidents of sexual battery and over 800 reported rapes and attempted rapes occurring in our nation’s public high schools.” More than 1 in 10 will have been sexually assaulted in or out of school before high school graduation, and “20 percent of women will be victims of attempted or actual sexual assault, as will about 6 percent of undergraduate men.”
We should treat Weinstein as an individual monster—and as a product of our educational system. The former we cannot change, but how our schools and colleges treat victims and the accused, that we can.
President Barack Obama sought to prioritize the rights of the victims by telling colleges to allow accusers to appeal not guilty findings, to discourage cross-examination of accusers and to accelerate verdicts. Obama urged colleges to consistently use the “preponderance of evidence,” or what is more likely than not, standard in sexual assault cases. The preponderance of evidence is considered the lowest degree of evidence necessary to establish proof, which empowers women to name rapists. The higher the standard for proving an assault, the less likely it is that women will come forward.
Many colleges resisted, arguing that the preponderance-of-evidence standard was too low a bar and would invite false accusations. In addition, several of the accused complained that the Obama guidance robbed defendants of due process, violated their individual rights and disregarded the autonomy of colleges to adjudicate these cases. Colleges also complained that the appeal process under the Obama guidance actually stretched out cases.
Acquiescing, DeVos replaced Obama-era Title IX polices with an interim guidance (pdf), which gives colleges the freedom to decide what standard of evidence to use. Instead of giving women more choices to name their assailants, DeVos empowered institutions.
In the tussle between the powerful and the powerless, DeVos has sided with “the Man.” DeVos’ interim guidance misses the point that powerful men, even within the noblest of institutions, abuse their power to the detriment of women.
We tend to look at colleges as being progressive or conservative. But we also need to look at them as male-dominated and protecting the interests of men. Even though women make up more than 56 percent of collegians, men constitute 70 percent of college presidents.
Campuses should give victims the benefit of the doubt in cases involving sexual assault. In addition, colleges are the first and last line of defense against a criminal-justice system in which “only a quarter of all reported rapes lead to an arrest, only a fifth lead to prosecution, and only half of those prosecutions result in felony convictions,” according to Know Your IX, a survivor- and youth-led organization focused on ending sexual and dating violence. On and off-campus, due process seems to favor men.
Take convicted rapist Brock Turner as an example. Turner, then a member of the Stanford University swim team, raped an unconscious woman in 2015. Turner was found guilty, and prosecutors sought six years. Turner, a white man, received a mere six-month sentence, a slap on the wrist for what Turner’s father dismissed at the sentencing as “20 minutes of action.”
“What he did to me doesn’t expire, doesn’t just go away after a set number of years,” wrote the unnamed victim in a letter submitted to the court. “It stays with me, it’s part of my identity, it has forever changed the way I carry myself, the way I live the rest of my life.”
Yet the judge who sentenced Turner—Santa Clara County Superior Court Judge Aaron Persky—said, “A prison sentence would have a severe impact on him.”
No wonder women often seek and expect justice through the honorable confines of the university.
Colleges also have a difficult time adjudicating sexual assault cases. Colleges have different judicial systems and no uniform standard of evidence. The absence of a consistent standard results in the passage of too much time and different levels of justice, which is why federal guidance is needed.
There is also the legitimate question of whether colleges have the capacity to adjudicate sexual assault cases. But DeVos’ unwillingness to name institutional sexism and gender bias renders her commentary on this front meaningless.
In the wake of Weinstein, what is more likely than not is the tradition of powerful academic institutions protecting male interests. The reason powerful men get away with rape and harassment is that systems protect them. And until we challenge the systems in our educational institutions, men like Weinstein will continue to find sanctuary in them.
This story was produced by the Hechinger Report, a nonprofit, independent news organization focused on inequality and innovation in education, in partnership with The Root.