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As civil rights advocates and advocates for student survivors of sexual harassment, we are pleased that the Department of Education (“the Department”) has begun the process of undoing the Trump administration’s vitiation of civil rights protections for students. The changes to the Title IX rule finalized in 2020 (“2020 Rule”) require schools to ignore many instances of sexual harassment and impose uniquely unfair and burdensome procedures. Other changes to the Title IX rule put students at greater risk of experiencing sex discrimination from institutions claiming religious exemptions, and with less transparency. We urge the Department to replace the 2020 Rule by promulgating a rule consistent with Title IX’s broad purpose to prevent sex-based discrimination in education. Below are our recommendations as to what we believe are the most crucial changes the Department must make to ensure schools effectively address sexual harassment and other sex discrimination.
Sexual harassment1 in schools is extremely pervasive and has a serious impact on educational access, yet student survivors frequently do not get the support they need. They are often ignored or disbelieved when reporting harassment, which results in them losing access to educational benefits; thus, survivors often withdraw from classes, struggle to participate in school activities, including athletics, or drop out. This impact is felt especially by women and girls of color, LGBTQI+ students, and disabled students, all of whom face stereotypes casting them as less credible. Countering the negative impact of sexual harassment on educational access requires robust protections under Title IX—yet, even with developments in enforcement of Title IX over the years, the prevalence of harassment continues, and schools continue to fail to respond effectively. This reality makes clear that the Department should never have scaled back Title IX regulatory protections in the first place.
It has been the longstanding policy of the Department to maintain broad protections against sexual harassment, consistent with the protections against harassment on the basis of race, color, national origin, and disability. For decades before the 2020 Rule, the Department defined sexual harassment as any “unwelcome…conduct of a sexual nature,” and schools were required to respond to student-on- student harassment if the harassment was “so severe, pervasive, or persistent that it limited a student’s ability to participate in or benefit from the education program,” when “the school knows or reasonably should have known” about the harassment.
The 2020 Rule departs from this significantly. Now, schools must dismiss Title IX complaints of sexual harassment unless the harassment is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity,” and must dismiss Title IX complaints of much harassment that occurs off-campus, regardless of its impact on a student’s access to education. The rule also imported the stringent standard for private Title IX suits seeking monetary damages to the Department’s administrative enforcement scheme. It replaced the “known or should have known” with a much higher bar for liability: a complainant must prove a school was deliberately indifferent to sexual harassment of which it had actual knowledge.
This definition of sexual harassment and new enforcement standard significantly weakens protections against sexual harassment in schools. Further, it chills reporting of sexual harassment by requiring students to meet an extremely high bar of misconduct; it also endangers students by forcing them to suffer repeated harassment until it can be deemed sufficiently “severe, pervasive, and objectively offensive” for a school to respond. The mandatory dismissal of complaints that do not involve sexual harassment on-campus or during an off-campus school activity also unfairly treats students differently based on the location of their harassment—foreclosing scores of students who are assaulted off-campus11 or during a study abroad program from recourse, regardless of the impact of the harassment on the student’s ability to equally participate in education. The rule constraining schools in this way from preventing and addressing sexual harassment impermissibly flouts Title IX’s purpose to prevent sex discrimination in education.
The 2020 Rule also inappropriately treats sex-based harassment differently from other forms of harassment under OCR’s jurisdiction. Until the 2020 Rule, the Department has consistently applied the same standard for schools’ liability for harassment of students on the basis of sex, race, color, national origin, and disability: that is, schools must respond to harassment of students on these bases if the harassment is “severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from [a school’s] services.” Unilaterally changing the sexual harassment standard to require different treatment of sex-based harassment complaints than other types of harassment complaints requires schools to engage in unlawful sex discrimination in their harassment responses. Further, it signals to survivors that their experiences and inability to access educational benefits will be taken less seriously, which particularly harms women and girls of color, LGBTQI+ students, and disabled students.
Finally, the 2020 Rule included a preemption provision that preempts state or local law to the extent there exists a conflict between these laws and the rule. Consequently, even if state or local law mandates that schools afford student survivors more robust protections against sexual harassment, the 2020 Rule now bars them from doing so if those protections conflict with the rule. We urge the Department to ensure that Title IX can act as a “floor” for protections—as other federal civil rights laws typically do—so schools are permitted to create additional protections for their students.
Longstanding Title IX rules require that schools implement grievance procedures for sexual discrimination that allow for the “equitable resolution” of complaints, which requires the process be fair to all parties. The Department has also recognized that schools must be afforded flexibility when responding to sexual harassment, based on the needs of students and institutional and administrative differences.
Despite the need to schools to have some flexibility in developing grievance procedures, the 2020 Rule creates an overly prescriptive scheme, such that schools have little to no discretion in resolving sexual harassment complaints. Further, the rule unilaterally imposed these prescriptive requirements for grievance procedures addressing sexual harassment alone—not any other form of harassment, discrimination, or misconduct. For example, it requires direct, live cross-examination of all parties and witnesses by a party’s advisor of choice, which creates a chilling effect in reporting and is unnecessary for ensuring that grievance procedures are reliable and thorough. Additionally, one such procedural requirement that bars post-secondary institutions from considering statements from a party or witness who refuses to be cross-examined or does not answer every question posed during cross-examination, has since been vacated by a federal district court as unlawful. The 2020 Rule also flouts the Department’s policy that grievance procedures be equitable by mandating a presumption of non- responsibility in school disciplinary proceedings. A procedure that tilts proceedings in favor of respondents these ways is clearly inequitable. It also perpetuates the myth that survivors lie and are less trustworthy, and especially hurts women and girls of color, LGBTQI+ students, and disabled students, who are often deemed intrinsically less credible when reporting sexual misconduct.
Restoring long-standing Departmental standards for addressing sexual harassment would ensure that schools’ grievance procedures are actually equitable and do not discourage reporting, while providing schools with sufficient flexibility in designing their disciplinary process.
In addition to betraying the spirit of Title IX, the Department justified the changes in the 2020 Rule by engaging in a perfunctory cost-benefit analysis. When the Department published its Notice of Proposed Rulemaking prior to the publication of its 2020 Rule, it claimed that the Proposed Rule would decrease the number of Title IX investigations conducted by schools and thus save schools $99.2 million annually. Reducing the number of investigations contravenes the purpose of Title IX because it ensures that schools ignore more sex discrimination. Moreover, the Department failed to account for the significant cost reducing investigations would impose on survivors, including foreclosing students from accessing justice and supportive measures to be able to feel safe and welcomed in school.
In promulgating changes to the Title IX rule, the Department should undertake a cost-benefit analysis that takes into account how the regulations protect an individual’s access to an education program or activity if they experienced harassment by considering at least the following:
LGBTQI+ students experience many sorts of discrimination in schools, including high rates of harassment and violence in schools, disparate discipline, intentional misgendering and misnaming, exclusion from school activities, and punishment under dress and grooming codes for failing to conform to sex stereotypes. In addition to the discrimination LGBTQI+ students face in schools, 2022 has seen a record number of anti-LGBTQI+ bills targeting students. In light of this reality, and in line with the U.S. Supreme Court’s decisions in Bostock and Price Waterhouse,and other relevant federal court decisions, the Department’s Title IX regulations should make clear that discrimination “on the basis of sex” includes discrimination based on sexual orientation, gender identity, transgender status, and sex characteristics, and that students must be able to access sex-segregated spaces and participate in school sports according to their gender identity.
We urge the Department to reverse two separate changes made to the Title IX regulations in 2020 that have allowed more institutions to claim a religious exemption and discriminate against students on the basis of sex, with less transparency. First, the changes made with the 2020 Title IX sexual harassment rule explicitly assure institutions that they need not provide advance notice to the Department—and thereby, to students, families, and the public—of their intention to rely on the religious exemption from Title IX in particular contexts. This change enables important information to be obscured from students and their families about the risks of sex discrimination at such institutions, including unequal treatment for women and girls, pregnant or parenting students, students who access or attempt to access birth control or abortion, and LGBTQI+ students, who are already especially vulnerable to discrimination. Moreover, allowing schools to not disclose their religious exemption is inconsistent with the Title IX rule that requires recipients to provide notice of their nondiscrimination policies. A second, separate Title IX rulemaking in 2020 added sweeping new criteria broadening the category of institutions eligible for the religious exemption, which expands this already-broad exemption even farther beyond the statutory terms and OCR’s prior, longstanding interpretation. The Department should undo this change and give the religious exemption a narrow interpretation to ensure fewer institutions are discriminating against students and to effectuate Title IX’s remedial purpose.
