The New Title IX Rule Is Irresponsible, Dangerous, and Cruel

Stop Betsy
By Katarina Watson

In May, Education Secretary Betsy DeVos released the final version of a new, 2,033-page Title IX regulation that shows a massive rewrite of schools’ obligations to address sexual harassment and assault complaints under Title IX—the federal law prohibiting sex discrimination in education.

And like most things to come out of the Trump administration—it’s bad.

The new Title IX rule prioritizes protecting students accused of assault, narrowly redefines sexual harassment, and includes numerous measures designed to discourage survivors from speaking out—including requiring colleges to hold live hearings to judge sexual assault allegations. By hiding behind the legal principle of “due process,” DeVos has created a new policy that holds perpetrators and their universities less accountable for the prevalence of sexual assault that will continue to occur.

The Department of Education chose to release this huge and complicated new rule in the midst of the coronavirus pandemic, making it clear that its priority during a global pandemic—one that’s caused an unprecedented and ongoing crisis in the education system—is making sure sexual assault and harassment are ignored.

Specifically, the rule:

  • protects those accused of sexual assault from facing any actual consequences,
  • ensures that schools don’t have to deal with sexual harassment complaints,
  • and to paraphrase, tells sexual assault survivors that “what happened to them wasn’t actually that bad, and that they should just shut up about it.”

What exactly does the new rule do?

Here are some highlights:

Mandatory live hearings with cross-examination.

The new rule requires colleges to adjudicate sexual assault allegations by forcing survivors to undergo cross-examination in a live hearing. This would eliminate the alternative processes many schools established to avoid re-traumatizing survivors, such as questioning alleged perpetrators and their accusers separately. Research has shown that aggressive cross-examination isn’t a reliable truth-finding strategy in sexual assault cases and that it has detrimental effects on survivors, including discouraging them from coming forward at all. Additionally, this requirement will further widen socioeconomic disparities that already pervade this process, as many accused parties have the resources to acquire strong (and expensive) legal counsel, whereas the complainant might not.

A new (and narrowed) definition of sexual harassment.

While federal law defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature,” the new rule is a lot narrower, defining it as “unwelcome conduct that a reasonable person would determine is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.” Before a school would be required to do anything about harassment, a student would have to prove that they’d been denied access to their education because of it. That’s a ridiculously high standard! Students shouldn’t have to endure continual, escalating harassment before they can get help.

Higher standards of proof for assault allegations.

The new rule lets schools demand “clear and convincing evidence” of sexual assault rather than the Obama administration’s recommendation of a “preponderance of evidence.”

Schools can ignore off-campus assaults.

The new rule only requires schools to respond to complaints of sexual assault that occurred on their campuses, during a school activity, or at a fraternity or sorority house. It exempts schools from responding to incidents that occur in study abroad programs and off-campus housing. Meanwhile, at many schools, a majority of sexual assaults occur off campus.

Only complaints made to certain employees count.

Under the new rule, K-12 schools have to respond to complaints of harassment or assault made to any employee, but colleges don’t. Colleges only have to investigate complaints made through a formal process to certain designated employees, such as deans or Title IX coordinators. That means if a student tells their RA, a teaching assistant, or their coach about an assault, they aren’t required to report it, and the school doesn’t have to do anything about it.

Instead of investigations, mediation.

The new rule allows schools to resolve sexual assault complaints using “informal resolution” processes instead of conducting investigations as long as they “obtain the parties’ voluntary, written consent.” This creates the opportunity for schools to pressure survivors into informally “working it out” with their attackers. The new regulation doesn’t outline how these informal processes should play out or what rights survivors have during them, which really draws into question their purported concern about everyone’s due process rights.

All of these measures protect perpetrators of sexual assault while discouraging survivors from making complaints, allow schools to avoid culpability for harassment and assault, and most certainly fail to protect students’ equal access to education. Moreover, schools have to plan for these new regulations by August 14, and situate them in the context of online or hybrid learning due to coronavirus.

What can we do about it?

During the rule’s public comment period, over 124,000 people submitted criticisms of the proposed regulations. Some of those criticisms did impact the final version—the rule will require universities to investigate incidents at certain off-campus sorority and fraternity houses instead of exempting them entirely, for example. However, those changes are woefully insufficient and we must stop the rule from going into effect while encouraging schools to strengthen their resources for survivors and policies for responding to complaints.

Following the announcement of the new rule, the National Women’s Law Center and other organizations immediately vowed to contest it. While that fight plays out in the courts, students can also get involved to protect their Title IX rights. Get involved with our campaign to End Campus Sexual Violence for ideas to brainstorm your organizing. Know Your IX also has a ton of resources for college students who want to take action around the new rule—check out their organizing tools and push your school to adopt policies that protect survivors.

We need to stop protecting perpetrators of sexual harassment and violence from facing consequences and create spaces for survivors to speak freely and be heard, as schools’ reputations should never take precedence over justice for survivors.

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