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DeVos’ Proposed Changes to Title IX, Explained

Comment Policy Update

Secretary DeVos’s proposed Title IX rules on sexual harassment would make schools more dangerous for all students. Under the proposed rules, schools would be encouraged, and even required, to be complicit in harassment and violence— in effect to aid and abet the Larry Nassars and Jerry Sanduskys of the world. Title IX was enacted to ensure that sex discrimination (including sexual harassment) would never be the end of anyone’s education. Yet DeVos’s rules are aimed at sabotaging the very purpose of Title IX.

Use this comment guide with NWLC’s Sample Comment to submit a comment to the Department of Education (ED). All comments are due January 28, 2019 at 11:59pm Eastern Time. If you are interested in writing a long, detailed comment, please email spatel@nwlc.org and etang@nwlc.org for a more detailed ~50-page comment guide.

DUTY TO RESPOND

Schools would be allowed—and, in many cases, required—to ignore students who report sexual harassment.

 

  1. NOTICE: In many instances, schools would not be responsible for addressing sexual harassment, even when school employees knew about the harassment.           

Rule summary (§§ 106.44(a), 106.30): Schools would not be required to address sexual harassment unless there was “actual knowledge” of the harassment by (i) a Title IX coordinator; (ii) a K-12 teacher (but only for student-on-student harassment, not employee-on-student harassment); or (iii) an official who has “the authority to institute corrective measures.”

What this means: Schools would only be responsible for addressing sexual harassment when one of a small subset of school employees actually knew about the harassment. For example, if a K-12 student told an adult school employee they trust—such as a playground supervisor, guidance counselor, or athletics coach—that they had been sexually assaulted by another student, or if they told a teacher that they had been sexually assaulted by a school employee, their school would have no obligation to help them. If a college student told their RA, TA, or professor that they had been raped, the school would have no obligation to help them. Under the proposed rules, Michigan State and Penn State would have had no responsibility to stop Larry Nassar and Jerry Sandusky—just because their victims reported sexual abuse to athletic trainers and coaches instead of employees with the “authority to institute corrective measures.” In contrast, current Title IX guidance requires schools to respond to sexual harassment if almost any school employee either knows about it or should reasonably have known about it.

  1. OFF-CAMPUS/ONLINE: Schools would be required to ignore harassment that occurs outside of a school activity, including most off-campus and online harassment.

Rule summary (§§ 106.30, 106.45(b)(3)): Schools “must dismiss” a formal complaint if the alleged conduct “did not occur within the [school’s] program or activity.”

What this means: Schools would be required (yes, required) to ignore all Title IX complaints of off-campus or online sexual harassment that happen outside of a school-sponsored program—even if the student is forced to see their harasser or rapist on campus every day. This conflicts with Supreme Court Title IX precedent, which recognizes that schools can be responsible for addressing sexual harassment that also occurs outside of a school program or activity. Current Title IX guidance also recognizes this responsibility, as does the Clery Act, which requires colleges and universities to address sexual assault and other campus crimes.

  1. DEFINITION OF HARASSMENT: Schools would be required to ignore harassment until it becomes quite severe and harmful and denies a student educational opportunities.

Rule summary (§§ 106.30, 106.45(b)(3)): Schools “must dismiss” a formal complaint if it alleges conduct that is not (i) an employee requesting sexual favors in return for good grades or other educational benefits; (ii) “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the [school’s] education program or activity”; or (iii) “sexual assault.”

What this means: Even if a student reports sexual harassment to the “right person,” and even if the harassment occurred within a school program or activity, their school would still be required (yes, required) to ignore the student’s Title IX complaint if the harassment hasn’t yet advanced to a point that it is actively harming a student’s education. If a student is turned away by their school after reporting sexual harassment, they are unlikely to report a second time when the harassment escalates. And even if a school would be legally required to intervene later on, it may already be too late—the student might already be ineligible for an important AP course, disqualified from applying to a dream college, or derailed from graduating altogether. In contrast, both the Supreme Court and current Title IX guidance define “sexual harassment” as “unwelcome conduct of a sexual nature,” requiring a response by the school before it effectively forces a student out of class or school.

  1. DELIBERATE INDIFFERENCE: Schools would be allowed to treat survivors poorly as long as the school follows various procedures in place, regardless of how those procedures fail to help or harm survivors.

Rule summary (§§ 106.44(a), (b)(1)-(4)): Schools must not be “deliberately indifferent” (“clearly unreasonable”) in response to known sexual harassment. A school is not deliberately indifferent: (i) where there is a formal complaint, if it follows the investigation procedures in § 106.45, regardless of the school’s final decision; (ii) where there are multiple reports against the same respondent, if the Title IX coordinator files a formal complaint and follows the procedures in § 106.45, regardless of the school’s final decision; (iii) in higher education where there is no formal complaint, if the complainant receives supportive measures; or (iv) in all other cases, if the school is not “clearly unreasonable.”

What this means: Under the proposed rules, even if a school is indifferent or unreasonable toward a student survivor, it would not be a violation of Title IX. School would have to be “deliberately indifferent” or “clearly unreasonable” in order to violate Title IX. As long as a school ticked various procedural boxes, the school’s response to harassment complaints could not be challenged. In contrast, current Title IX guidance requires schools to act “reasonably” in response to known sexual harassment by investigating, providing remedies, and preventing the harassment from occurring again. Workplace harassment laws hold employers to a higher standard in addressing sexual harassment than DeVos is proposing to for schools.

  1. SUPPORTIVE MEASURES: Schools would be allowed to give survivors weak (or even harmful) “supportive measures.”

Rule summary (§ 106.30): “Supportive measures” must be “non-disciplinary,” “non-punitive,” “reasonably available,” “without fee or charge” and “designed to restore or preserve access” to the school’s program or activity “without unreasonably burdening the other party.” Supportive measures may include “counseling,” “extensions of deadlines,” “modifi[ed] work or class schedules” or “work or housing locations,” “mutual restrictions on contact between the parties,” “leaves of absence,” “campus escort services,” and “increased security and monitoring” on campus.

What this means: Even if a student is able to get past the hurdles in #1-3, their school would still be able to deny them the “supportive measures” they need to stay in school. That is, school could offer weak “supportive measures” that are “designed to” help the student but do not actually help the student. For example, a school could create a mutual no-contact order between a survivor and her assailant but refuse to discipline the assailant when he continues to text her and find ways to bump into her at school. In addition, a survivor would not be able to get a one-way no-contact order against their assailant; the survivor would need to agree to a mutual no-contact order, which implies that the survivor is at least partially responsible for their own assault. This would also be harmful because a rapist could send his friends to torment the survivor, and if the survivor asks him to tell his friends to back off, she could be suspended for violating her side of the no‑contact order. As another example, a school might be barred from transferring a rapist to another class or dorm because it would “unreasonably burden” that him, thereby forcing a survivor to change all of her own class and housing assignments in order to avoid her rapist. In contrast, the Clery Act, which applies to colleges and universities, does not require accommodations for student survivors to be “non-disciplinary” or “non-punitive,” or not to “unreasonably burden[] the other party.”

  1. RELIGIOUS EXEMPTIONS: Religious schools would be able to claim “religious” excuses for violating Title IX, even if the school had never before requested a religious exemption from ED.

Rule summary (§ 106.12(b)): Religious schools “are not required to seek assurance from [ED] in order to assert” a religious exemption. In the event ED notifies a school that “it is under investigation for noncompliance with [Title IX],” the school “may at that time raise its exemption.”

What this means: ED is assuring religious institutions that they would not be required to claim an exemption from ED, or give students any notice that they are claiming a religious exemption from Title IX, before they engage in sex discrimination against women and girls, LGBTQ students, pregnant or parenting students (including those who are unmarried), and/or students who access or attempt to access birth control or abortion. Schools could come up with a religious excuse justifying their discriminatory action after the fact, once they are already under investigation for violating Title IX. Students and families would not know in advance whether the student’s school is claiming the right to discriminate against them without any liability.

 

DUE PROCESS

In the rare cases when schools would be required to respond to a complaint of sexual harassment, they would be allowed—or even required—to deny harassment victims of due process.

 

  1. TIMEFRAME: There would be no clear timeframe for investigations, and schools would be able to delay taking any action if there is also an ongoing criminal investigation.

Rule summary (§ 106.45(b)(1)(v)): Schools must have “reasonably prompt timeframes” but may create a “temporary delay” or “limited extension” of timeframes for “good cause,” which includes “concurrent law enforcement activity.”

What this means: Students who report sexual harassment might be forced to wait months, or even more than a year, for any resolution of their complaints. In particular, if there is also an ongoing criminal investigation, the school would be allowed to delay its Title IX investigation for an unspecified length of time. This would be especially harmful to K-12 students, because most school employees are legally required by state laws to report child sexual abuse to the police—which means there will often be an ongoing criminal investigation. In contrast, Title IX guidance issued by the Obama administration recommended that schools finish investigations within 60 days, and prohibited schools from delaying a Title IX investigation just because there was an ongoing criminal investigation.

  1. PRESUMPTION OF NO HARASSMENT: Schools would be required to presume that no harassment occurred.

Rule summary (§ 106.45(b)(1)(iv)): Schools’ Title IX procedures must include “a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.”

What this means: Schools would be required to start with the presumption that the reported harassment did not occur. This presumption would exacerbate the rape myth that women and girls “lie” about sexual assault, when in fact more than 1 in 5 girls ages 14-18 are kissed or touched without their consent; and more than 1 in 5 women, nearly 1 in 18 men, and nearly 1 in 4 transgender and gender-nonconforming students are sexually assaulted in college. This presumption would also ignore the reality that men and boys are far more likely to be victims of sexual assault than to be falsely accused of it. This presumption would also harm women and girls of color, LGBTQ students, pregnant and parenting students, and students with disabilities—all of whom are subject to harmful stereotypes that make schools less likely to believe them when they report sexual harassment. In contrast, current Title IX rules require schools to treat both students “equitabl[y]” and not make any presumptions about either student’s credibility.

  1. STANDARD OF PROOF: Many schools would be required to use an inappropriate and more demanding standard of proof to investigate sexual harassment than to investigate other types of student misconduct.

Rule summary (§ 106.45(b)(4)(i)): A school may use a “preponderance of the evidence” standard to decide whether harassment occurred only if (i) it uses preponderance for all other misconduct that carries “the same maximum disciplinary sanction,” and (ii) it uses preponderance in complaints against employees. Otherwise, the school must use the more demanding “clear and convincing evidence” standard.

What this means: The preponderance of the evidence—which means “more likely than not”—is the only standard of proof that treats both sides equally, and is consistent with Title IX’s requirement that grievance procedures be “equitable.” It is also the standard of proof used by federal courts in all civil rights cases, including all Title IX cases. In contrast, “clear and convincing evidence” is a standard of proof that tilts investigations in favor of the named perpetrator. It is inappropriate to use in any civil rights proceeding, especially school proceedings. But under the proposed rules, schools would be required to use “clear and convincing evidence” in student sexual harassment investigations if the “clear and convincing standard” is used in complaints against employees. Many school employees have contracts that require using a more demanding standard of evidence than the preponderance standard for employee misconduct investigations. Therefore, those schools would also be required to use that other standard—which may be “clear and convincing evidence”—for student sexual harassment investigations, even if those schools use the preponderance standard for all other types of student misconduct. Although DeVos has claimed that the Obama-era Title IX guidances didn’t provide schools enough flexibility, and that her proposal would grant schools more freedom, her proposal would effectively force schools to use “clear and convincing evidence” for Title IX proceedings except in limited circumstances. In contrast, the Obama administration required schools to use the preponderance standard, and the Title IX rules require schools to treat both students “equitabl[y].” In fact, ED has required schools to use the preponderance standard in Title IX investigations since as early as 1995, throughout both Republican and Democratic administrations. A survey of 440 colleges during the 2011-12 school year found that the preponderance standard for address sexual harassment was already in use at 85% of the colleges surveyed, 100% of the Division I schools surveyed, and 100% of the 50 largest public institutions.

  1. CROSS-EXAMINATION: Survivors in college and graduate school would be required to submit to live cross-examination by their rapist’s advisor of choice.

Rule summary (§ 106.45(b)(3)(vi)-(vii)): In K-12 schools, the school must ask both parties questions, either by (i) conducting a “live hearing”; or (ii) having the students “submit written questions” for the other side to answer. But in higher education, the school must conduct a “live hearing,” and parties and witnesses must be available for cross-examination by the other party’s “advisor of choice.” If requested, parties must be allowed to sit in “separate rooms” connected by “technology.” If a student “does not submit to cross-examination,” the school “must not rely on any statement of that [student] in reaching a determination.”

What this means: Colleges and universities would be required to subject survivors to live cross-examination by their rapist’s adviser of choice—often an attorney who is prepared to grill the survivor about the traumatic details of their assault. This person could also potentially be an angry parent or a close friend of the named assailant. The survivor would not be entitled to the procedural protections that witnesses in formal court proceedings have during cross-examination. This would further traumatize college and graduate school survivors who seek help through Title IX and would discourage many students–parties and witnesses–from participating in a Title IX complaint. DeVos has also claimed that the Obama-era guidances didn’t provide schools enough flexibility, and that her proposal would grant schools more freedom, but these cross-examination provisions are highly inflexible and prescriptive. In contrast, K-12 schools would be allowed to simply have the students submit written questions for the other side to answer—a fair, trauma-informed, and flexible process that was encouraged (but not required) by the Obama administration.

  1. APPEALS: Schools would be required to give unequal appeal rights with respect to sanctions.

Rule summary (§ 106.45(b)(5)): Schools “may choose” whether or not to offer an appeal. If a school offers an appeal, “it must allow both parties to appeal.” However, if a school finds that a student was in fact sexually harassed or assaulted, the student may only appeal for better “remedies” but is “not entitled to a particular sanction.”

What this means: Although DeVos has claimed that the proposed rules would require “equal” appeal rights, schools would still be required to provide unequal grounds for appeal. If a student is found responsible for sexual harassment and given a disproportionately severe sanction, the perpetrator would be allowed to appeal for lower sanctions. However, if a perpetrator is given a sanction that is merely a slap on the wrist (e.g., a 1-day suspension for a rape), the survivor would not be allowed to seek more appropriate sanctions. In contrast, the Obama administration required schools to provide equal appeal rights—including equal grounds for appeal, and the Title IX rules require schools to treat both students “equitabl[y].”

  1. MEDIATION: Schools would be allowed to pressure survivors into mediation with their assailants.

Rule summary (§ 106.45(b)(6)): Schools may use “any informal resolution process, such as mediation” to resolve a complaint of sexual harassment, as long as the school obtains the students’ “voluntary, written consent.” Schools may “preclude[] the parties from resuming a formal complaint” after they begin the informal process.

What this means: Mediation is a strategy often used in schools to resolve peer conflict, where both sides must take responsibility for their actions and come to a compromise. Mediation is never appropriate for resolving sexual assault, because sexual assault is never the victim’s fault. Moreover, the last thing survivors need is to be pressured to “work things out” with their assailant and retraumatized as a result. But under the proposed rule, schools would be allowed to pressure survivors into giving “consent” to mediation and other informal processes with their assailants. Schools would also be allowed to prevent survivors from ending an informal process and requesting a formal investigation—even if they change their mind and realize that mediation is too traumatizing to continue. This would especially harm K-12 students, students with disabilities, and students at religious schools, who are more likely to be pressured by their schools into “voluntarily” agreeing to an informal process, and who may also be less likely to understand the consequences of waiving their right to change their mind and to request a formal investigation later on. In contrast, current Title IX guidance prohibits schools from using mediation to resolve sexual violence—not “even on a voluntary basis.” It also allows parties to end the informal process and start the formal process at any time.

STATISTICS

DeVos’s rules would make it even harder for students who experience sexual harassment to come forward, get help, and stay in school.

 

  1. PREVALENCE: Far too many students experience sexual harassment. But under the proposed rules, many of these incidents would not be covered by Title IX.
  • Sexual harassment: During college, 62% of women and 61% of men experience sexual harassment. In grades 7-12, 56% of girls and 40% of boys are sexually harassed in any given school year.
  • Sexual assault: More than 1 in 5 women, nearly 1 in 18 men, and nearly 1 in 4 transgender and gender-nonconforming students are sexually assaulted in college. More than 1 in 5 girls ages 14-18 are kissed or touched without their consent. In 2018, the Chicago Public Schools, received nearly 500 complaints of student-on-student sexual violence in less than 3 months, and Yale University received 154 student complaints of sexual misconduct in a single semester.
  • Off-campus assault: 87% of students live off campus. 41% of college sexual assaults involve off-campus parties. Only 8% of rapes occur on school property. Students are more likely to be sexually assaulted if they are in a sorority (nearly 1.5x more) or fraternity (nearly 3x more).
  • Men and boys: Men and boys are far more likely to be victims of sexual assault than to be falsely accused of it. Nearly 1 in 18 men are sexually assaulted in college, and 40% of boys in grades 7-12 are sexually harassed in any given school year.
  • Pregnant or parenting students: 56% of girls ages 14-18 who are pregnant or parenting are kissed or touched without their consent.
  • LGBTQ students: More than half of LGBTQ students ages 13-21 are sexually harassed at school. Nearly 1 in 4 transgender and gender-nonconforming students are sexually assaulted during college.
  • Students with disabilities: Students with disabilities are 2.9 times more likely than their peers to be sexually assaulted.
  1. UNDERREPORTING: Reporting sexual harassment is already hard enough. But the proposed rules would further discourage students from coming forward to ask their schools for help.
  • Underreporting: Only 12% of college survivors and 2% of girls ages 14-18 report sexual assault to their schools or the police.
  • Reliance on schools: Some students—especially students of color, undocumented students, LGBTQ students, and students with disabilities—are less likely than their peers to report sexual assault to the police due to increased risk of being subjected to police violence and/or deportation. For these students, schools are often the only avenue for relief.
  1. SCHOOL RESPONSES: Students who report sexual harassment are often ignored or even punished by their schools. But the proposed rules would make it even easier for schools to do just that.
  • All students: When survivors come forward, they are often ignored or punished by their schools. Too many survivors end up dropping out of school because they do not feel safe on campus; some are even expelled for lower grades in the wake of their trauma. For example, 34% of college survivors drop out of college.
  • Women and girls of color: Schools are more likely to ignore or punish women and girls of color who report sexual harassment due to harmful race and sex stereotypes that label them as “promiscuous.” Schools are also more likely to punish Black women and girls by labeling them as the “aggressor” when they defend themselves against their harassers or when they respond to trauma because of harmful stereotypes that they are “angry” and “aggressive.”
  • Pregnant or parenting students: Schools are more likely to ignore or punish pregnant or parenting students who report sexual harassment due to harmful stereotypes that label them as “promiscuous.”
  • LGBTQ students: Schools are more likely to ignore or punish LGBTQ students who report sexual harassment due to harmful stereotypes that they are “promiscuous” or draw “attention” to themselves.
  • Students with disabilities: Schools are more likely to ignore or punish students with disabilities who report sexual harassment due to harmful stereotypes that they are “asexual” and due to the fact that they often have greater difficulty describing the harassment they experience.
Published On: November 30, 2018Associated Issues: Education & Title IXSexual Harassment & Assault in Schools

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