Neutrality in Name Only

Creative Commons photo by Wolfram Burner

In a letter sent to Sen. Patty Murray (D-Washington), Education Secretary Betsy DeVos roughly outlined her goals for the Department’s Office of Civil Rights (OCR). According to DeVos, the OCR will return to being a “neutral” body in its handling of Civil Rights violations.

DeVos was careful enough to qualify some of what she meant, stating that the Obama-ear changes to the body resulted in “…a pattern of over-reaching, of setting out to punish, and embarrass institutions rather than work with them to correct Civil Rights violations…” She continued to criticize the Obama administration’s approach by suggesting it was unfair that individual cases should be viewed as evidence of broader systemic/institutional form of discrimination.

Her proposed solutions to these perceived problems? 1. Stop proposing and implementing new regulations until there has been meaningful public dialogue on the issue and 2. stop looking at “individual cases” as broader systemic issues that are endemic to institutions of education.

To her supporters, such a return to “neutrality” is in accordance with protecting civil rights—primarily those of the accused of perpetrating sexual assault on a college campus.

While it is important to protect Civil Rights across the board, one can easily see there are some deeply troubling issues with DeVos’ vision for the OCR. Foremost, while DeVos outlines a general vision for what she thinks a neutral OCR will look like, she does not specify what she means by “neutral”—i.e. what standard she is using in order to be certain that the OCR’s actions would, in fact, be neutral.

Currently we do not have any formal standard of “neutrality” outside of what our Civil Rights laws specify; our laws on Civil Rights are meant to be the neutral standard—as in, the laws are the reference point for the adjudication process—not any particular institution or political ideology—and  in order to know that a law was violated, we need to have objective data—or evidence.

That said, when it comes to a neutral government body,  relative to our Civil Rights laws, a truly neutral body should be anchored by these laws themselves, and a judgment should be meted out on the basis of evidence. We do not have such a thing as a “stoic neutrality” or “bystander neutrality” because we already have a definition that is meant to guide our judgment. We pick sides, and our laws have us do so, but on the basis of what the evidence supports.

We also have consequences for violations, so the OCR is not supposed to be a “neutral” bystander body as such.  These are our guidelines. These are also the principles that the Obama Administration tried to uphold as outlined in the former president’s “Dear Colleague” letter. His administration’s OCR was gathering information about these violations of Title IX because that information was evidence of a pattern of discrimination.  They were not merely “individual cases”—as if they occurred in some kind of vacuous bubble, devoid of a larger context.

In fact, many survivors of sexual violence  who have come forward attended the same institutions. Let’s take University of California, Berkeley, as a prime example.  In 2014, 31 women came forward against UC Berkeley for having severely mishandled their assault investigations, and more continued to come forward in the ensuing years (most infamously was the case of Sujit Choudhry—a former Dean of Boalt School of Law at Berkeley). UC Davis, UCLA and UC Santa Cruz, along with a slew of private institutions, including Brown, Columbia, Harvard, Stanford and Yale also faced similar problems on their respective campuses.

How many more of these cases do there need to be in order for us to actually call it a pattern? To suggest that there is not a pattern is factually wrong at best, and  appalling at worst because it undermines the severity of the issue. Prior to this, the pre-Obama OCR did not do much to investigate Title IX violations, so not much was done.

However, with the data that was gathered under the Obama administration, we are more certain that administrative processes were never neutral themselves and tended to favor the accused because there were clear instances of Title IX violations within the administrative investigative processes, yet the accused did not face the consequences.

The rights of the accused were always left in-tact while those of the accusers were severely violated. This occurred up to and well into the Obama administration before it was changed by the former president. Is DeVos suggesting that she will be returning to what the OCR was before the Obama-era changes? Is that her notion of neutrality? Hopefully, not.

As for the punishments and embarrassment that these institutions endured under the Obama administration—it must have been profoundly emotionally difficult to endure the shame, right? Am I right? No, it was well-deserved (perhaps light-handed, but still well-deserved) because their procedures were severely lacking in fairness and were guided by a desire to cover-up fault. The students whose rights were violated endured more shame than the schools.

Remember, there are punishments for violations such as these, and the just thing to do would be to deliver on those consequences.  What makes matters even more bleak for the future of the OCR is that Candice Jackson—who currently heads the office—had this to say about campus sexual assault: “[T]he accusations — 90 percent of them — 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.”

If this quote does not shed light on her skewed attitude towards sexual misconduct, then perhaps a quick profile will: Candice Jackson, a lawyer and sexual assault survivor herself,  was quick to undermine the narratives of women who had accused Mr. Trump of sexual assault and battery while happy to support the women who accused Bill Clinton.

If she were truly a neutral person, then she should have criticized Ivanka and Melania as much as she did Hillary Clinton for defending Bill Clinton. Nor should she have called Trumps accusers “fake victims.” Her handling of each of these situations seem profoundly impacted by political expedience. After all, if she served only to protect survivors, then it makes little sense why she chose not to protect the women who accused our current president.

In response to her poorly worded remarks regarding campus assault, her apology felt halfhearted. “As an assault survivor myself, I would never seek to diminish anyone’s experience…” But she did, and she had a prior history of it, making it not very easy to forgive and forget. Her words, her deeds, and the power she has been appointed with show how she will run the OCR—not as a neutral body that is outlined by our Civil Rights law, but as a neutral body outlined by the administration’s agenda, which appear to be two very different things. Such comments seem to diminish the likelihood that the Office of Civil Rights will handle future such  situations in a fair and balanced fashion.

The best way to handle this problem may very well be to find a new person to head the OCR, someone with a proven track record of a strong adherence to Civil Rights and the underlying moral principles that such laws were meant to enshrine and protect.

Further, the Obama-era policies should remain in place as a means to monitor and measure how institutions are handling these cases. This is especially pertinent since these school are financially bound to the federal government. If they are to benefit from federal funds, then we must know if they are following federal rules that pertain to them.

Otherwise, if DeVos and Jackson are allowed to head down their own path, one wonders whether the future of our Civil Rights will be in greater jeopardy.

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