By Julie DiCaro–
(CBS) If you thought the reports out of Baylor over the last year couldn’t get any worse, think again.
On Friday, a woman identified only as “Elizabeth Doe” filed a lawsuit against the university in federal court, in which she alleges she was gang-raped by two Baylor Football players in spring 2013 while working as a “hostess” for the football program. The allegations of Doe’s own rape are stomach-churning, but it’s the other allegations in her lawsuit that exploded across sports media.
In her complaint, Doe alleges that more than 30 Baylor football players committed at least 52 rapes, including five gang rapes, over the course of a four-year period from 2011-’14. Further, Doe claims that the school intentionally ignored criminal misconduct by football players, despite a federal mandate that schools take allegations of sexual assault seriously and establish a procedure for the handling of such allegations. One of the more disturbing claims in Doe’s suit is that Baylor arranged to fully pay for a student athletic trainer’s tuition in exchange for her silence after she reported being raped by one of the same players who allegedly assaulted Doe.
All of this ties into Secretary of Education nominee Betsy DeVos and Title IX. How? Doe’s lawsuit against Baylor is premised on two theories: negligence by the school and a violation of Title IX.
To understand the importance of DeVos’ confirmation to the future of sexual assault allegations on college campuses, it’s important to understand what Title IX requires of schools. Enacted in 1972, Title IX is a landmark civil rights law that prohibits sex-based discrimination, regardless of gender, in schools receiving federal funding. Within the meaning of Title IX, sex-based discrimination includes sexual harassment and sexual violence. The law also requires the school to take steps to ensure the campus is free of sex-based discrimination, including establishing a procedure for fairly handling allegations of sexual assault. Every school covered by Title IX must employ a Title IX coordinator to handle complaints falling under the umbrella of the law.
During the Obama administration, the Office of Civil Rights (OCR) sent a letter to schools covered by Title IX, ordering that sexual assault be considered a form of sexual harassment under Title IX and further mandating that schools use the lower “preponderance of evidence” standard in determining whether a sexual assault has taken place. Before the OCR letter, some schools had been using a much higher burden of proof, forcing alleged victims to establish that a rape took place by “clear and convincing evidence.” In laying out the new requirements for handling sexual assaults on campus, the OCR letter makes it clear the federal government was making a significant effort to combat campus rape. It reads in part:
The statistics on sexual violence are both deeply troubling and a call to action for the nation. A report prepared for the National Institute of Justice found that about 1 in 5 women are victims of completed or attempted sexual assault while in college. The report also found that approximately 6.1 percent of males were victims of completed or attempted sexual assault during college.
The lower standard of proof, coupled with a reiteration of a school’s requirements under Title IX, marked a critical effort by OCR and the Obama administration to make the process of reporting a sexual assault on campus easier for victims. However, three years later in 2014, 91 percent of colleges reported zero incidents of rape on their campus that year. That lack of reporting flew in the face of findings by the U.S. Department of Justice that one in five women is sexually assaulted while in college. Clearly, it’s important for Title IX to do much more to make college students feel safe in reporting rape.
Which brings us to DeVos, Donald Trump’s nominee for Secretary of Education.
In 2012 and 2013, DeVos donated a total of $10,000 to the group Foundation for Individual Rights in Education (FIRE), which has filed its own lawsuit against OCR, alleging the lower standard of proof backed by the Obama administration is unfair to those accused of sexual assault. DeVos steadfastly refused to answer specific questions on the subject during her confirmation hearing. Here’s part of her exchange with Sen. Robert P. Casey (D-Pa):
Casey: “I ask you, would you uphold that 2011 Title IX guidance as it relates to sexual assault on campus?”
DeVos: “Senator, I know that there’s a lot of conflicting ideas and opinions around that guidance, and if confirmed I would look forward to working with you and your colleagues and understand the range of opinions and understand the issues from the higher ed institutions that are charged with resolving these and addressing them. And I would look forward to working together to find some resolutions.”
DeVos’ answers were cold comfort to those who work with campus rape victims. Rape, Abuse & Incest National Network (RAINN) estimates that only about 310 of every 1,000 rapes are actually reported to police, and about 80 percent of campus rapes go unreported. In contrast, the FBI found in 1997 that approximately eight percent of rape allegations are false. Assuming those statistics are correct, the problem of unreported campus rape dwarfs false allegations by a significant amount, yet DeVos has chosen to not to make donations to those groups fighting campus rape but to those trying to roll back the OCR’s more victim-friendly standards for Title IX compliance officers.
Jessica Luther, author of Unsportsmanlike Conduct: College Football and the Politics of Rape, is wary of DeVos as an unknown quantity when it comes to Title IX.
“While we most often talk about (Title IX) enforcement in regards to universities and colleges, it also covers almost all grade schools, trade schools, cosmetology schools, a long list,” Luther says. “We need to remember that the OCR, in response to Title IX, also makes sure that transgender students are not discriminated against, that pregnant students have the same access to education as their peers and that there is gender equity in sport in school. I worry deeply about how DeVos will treat all of these things, what the OCR would be like under her and if she is truly equipped and knowledge enough to make good, compassionate decisions that will affect so many students across this country.”
The Baylor football scandal is a direct result of an environment in which victims have chosen not to come forward because the benefit of staying silent outweighed coming forward to suffer retaliation and pressure to recant. Taking steps to roll back standards set by OCR to make the Title IX reporting process more accessible to victims will only lead to more intimidated victims and more unreported rapes. Moreover, such a reverse in policy would send the message to schools that disciplining student sexual assault perpetrators is no longer a priority for the current administration.