Last week, the public comment period for the Department of Education’s (ED) disastrous proposed rules to change how Title IX protects students from sexual harassment and assault in schools, closed. The National Women’s Law Center joined tens of thousands of survivors, civil rights groups, mental health professionals, school administrators, colleges, state legislators, state attorney generals, and U.S. senators who submitted comments opposing the rules.

Now it is time for DeVos and her team to start reviewing and responding to the 100,000+ comments that were submitted. We wish them the best of luck, because we had a lot to say.

Our 70-page comment criticizes pretty much every aspect of DeVos’s plan, pointing out how confusing and illogical the rules are, the negative impacts they’ll have on survivors and on the ability of schools to respond to sexual harassment, and the many ways ED didn’t follow the rules for their own rulemaking.

It’s worth the read, but here’s the TL;DR version, minus most of the legalese:

First and foremost, the proposed rules would be devastating for survivors. They would discourage reporting of sexual harassment and assault, shield schools from liability when they fail to respond to reports when they are made, and tilt proceedings in favor of named harassers and against survivors. The list of ways the proposed rules would accomplish such terrible goals is extensive, but here are just some examples:

  • ED’s definition of “sexual harassment” is unjustifiably difficult to meet and is woefully out of touch with the reality of sexual harassment at school. ED’s proposed rule requires students to show that the harassment they suffered is “severe, pervasive, and objectively offensive” before schools are allowed to act. This harsh definition ignores decades of federal law defining sexual harassment as unwelcome sexual conduct, and ignores repeated studies showing the prevalence of sexual harassment on campus. It’s also a harder definition to meet than the one in play at workplaces, where adults only need to show that harassment is severe or pervasive to get their employer to act. ED’s definition has created a perverse result that would prohibit schools from taking steps to protect children from harassment that employers would be required to take for their adult employees. And it would signal to children and young adults that they must wait until harassment has reached its breaking point to report it to their schools.
  • ED would make it nearly impossible for K-12 students to report assault committed by a teacher. The proposed rules would allow K-12 students who face harassment from another student to report the harassment to a teacher they trust. But, for reasons ED fails to explain, if that same student is assaulted by a teacher or other school employee, that student would have to report to a school employee “with the authority to institute corrective measures” – a term ED doesn’t bother to adequately define. Presumably, this means a child must report to a principal, superintendent, or Title IX coordinator, most of whom are complete strangers to students, and most of whom don’t work in schools, but in central administrative offices. This is nonsense, and ignores how difficult it can be, especially for very young students, to report the details of an assault to total strangers.
  • ED would require schools to dismiss reports of off-campus harassment. This is a major problem for college and K-12 students alike. Although the way ED defines off-campus is unclear, it could be read to imply that schools must dismiss complaints of assault that happened at fraternity and sorority houses, where a lot of sexual assaults occur. And it would certainly require dismissal of complaints of harassment that occurred online, at house parties, or elsewhere. And this is the case regardless of who does the harassing—if a teacher sexually assaults a K-12 student away from the classroom, a school would have to dismiss a Title IX complaint of sexual assault against the teacher. There is no justification for this policy change, and school representatives have called ED out for inexplicably tying the hands of school administrators who know that harassment outside of school affects the safety of students in school.
  • ED would require grievance procedures that favor named harassers and may traumatize survivors. The proposed rules would require schools to hold mini-trials for each formal complaint of sexual harassment or assault. Under the rules, colleges would be required to conduct live hearings, complete with cross-examination, a harsh standard of evidence that most experts disagree with, and a “presumption of innocence” for the named harasser. But what those mini-trials lack are the careful protections for victims that real courts have created, like rules that prohibit irrelevant evidence meant only to victim-blame and slut-shame. The rules make clear that if the schools follow these procedures, they will not be found liable for violating Title IX, even if those schools mishandle complaints, fail to provide effective supports to survivors, allow questioning that is inappropriate and could be triggering, and wrongly determine that the reported assault or harassment didn’t occur.

We could go on—virtually every rule that ED proposes makes life harder for survivors and other harassment victims. Such a grand plan must have a clear motivation, but the reasons ED gives for the proposed changes just don’t hold up.

ED spends a lot of time justifying its proposed rules in the named of “due process” for named harassers. But “due process” is clearly a red herring: schools are already required to meet due process standards set by the courts and reiterated in the current rules that DeVos wants to scrap.

Regardless, ED insists on making schools use court-style trials that are simply not required in school proceedings. The proposed rules do not “restore” due process rights—they have always been there. Instead, the rules make it easier for schools to let named harassers off the hook for their actions.

Protecting named harassers isn’t the point of Title IX. Title IX was enacted to require schools to respond when a student is in danger of losing equal access to educational opportunities because of sex discrimination and it requires to schools to have prompt and equitable in grievance procedures. Title IX is not about punishment for named harassers—it is about remedying the effects of sex discrimination and providing supports to allow survivors to feel safe enough to thrive in school. ED completely ignores this when it sets out to privilege “due process” rights of the accused over the education of survivors.

ED also attempts to explain its proposed rules by claiming that they will give schools “flexibility” to run school misconduct proceedings. But many of the rules would do the exact opposite. The rules would require costly and inflexible procedures that will fall particularly heavily on community colleges, vocational schools, and other schools that lack infinite resources. Schools will also have to spend money and time trying to figure out what these confusing rules mean and retraining their employees to meet ED’s new standards. They would require schools to dismiss complaints that schools could have otherwise remedied. They would require schools to treat complaints of sexual misconduct differently than other forms of misconduct. None of these things improve flexibility, and schools aren’t fooled.

So what is ED’s true motivation behind these proposed rules? Everything in the rules and the comments made by the people in power in this administration indicate that ED simply doesn’t believe survivors.

ED ignores the repeatedly confirmed statistics showing that sexual assault and harassment is an epidemic in our schools, that rampant false accusations simply aren’t a thing, and that survivors already vastly underreport for fear that they will not be believed. DeVos has repeatedly trivialized the range of sexual harassment that students regularly face, claiming “if everything is harassment, then nothing is.” Former assistant secretary of ED Candice Jackson reinforced the myth of false accusations, claiming that “90 percent” of her office’s Title IX investigations were the result of “drunk[en]” sexual encounters and regret. President Trump himself has repeatedly publicly dismissed credible allegations of sexual harassment and assault and defended named accusers who were finally called out for their irreprehensible actions against women.

When it comes down to brass tacks, it’s clear that these proposed rules are not motivated by “due process” or school flexibility. They are motivated by sex stereotypes that women and girls lie about sexual harassment and assault, and that sexual harassment is not serious or important enough to prevent. Basically, DeVos and her team are using Title IX—a law banning sex-discrimination—to actively discriminate based on sex stereotypes. It’s sickening. It’s unacceptable. It’s illegal.

Hopefully, DeVos and her team will read our comment (and the tens of thousands of others) opposing these rules and do the right thing: withdraw them entirely. If she doesn’t, our fight won’t end there. The Trump Administration is no stranger to seeing its regulations fail miserably in court. And we’re no stranger to suing the Department of Education when it misbehaves.

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