NOW President Says New Trump/Devos Title IX Rule Endangers All Students
July 20, 2020
A new rule (regulation) adopted by the Trump Administration to limit Title IX’s authority to protect students from sexual harassment and assault on campus became final on August 14. Education institutions that receive federal funds are required to comply with provisions that greatly limit how schools should respond – or not respond – to complaints of sexual harassment and assault.
NOW president Toni Van Pelt, commented, “The new Trump/DeVos rule is unfair, discriminatory, and places all students in danger. It not only makes it harder for survivors to achieve proper justice, it favors the side of the accused, further silencing and traumatizing the victim. It is rooted in the deep misogynist myths that victims are liars and that victims in some way play a role in their own abuse. I hope that the courts ill stop this ill-conceived and punishing rule.’
The rule requires that all education institutions that receive federal funding were to have new policies and procedures in place by August 14. Even through many groups, including NOW, advocated for a delay, the Department of Education pushed it forward regardless of the devastating Covid-19 pandemic and its impact on schools and students.
Schools Can Ignore Complaints of Sexual Harassment, Assault – One of the more onerous provisions of the new rule would allow education institutions to ignore complaints made by students who do not live on campus or if the harassment took place off campus. Most college and university students live off campus, so they will have no recourse for their complaints. Further, a re-definition of what constitutes sexual harassment/assault would exclude all except the most extreme cases. Survivors who do go through the process involving a thorough investigation will be subjected to a re-traumatization in a live, direct cross examination by a representative (could be a friend of the accused or perhaps an angry parent) of the accused, using an unfair standard of proof that favors their rapist or abuser. These new provisions and many others detailed in this article, threaten the safety of all students.
Multiple Lawsuits Challenge the Trump/DeVos Rule – The good news is that a lawsuit was filed in June by the National Women’s Law Center (NWLC) and Diane Rosenfeld of Harvard Law School in her individual capacity against Department of Education Secretary, Betsy DeVos, and the Trump Administration’s new rule. The lawsuit was brought on behalf of organizations that represent survivors of sexual harassment and assault, including Equal Rights Advocates, Victim Rights Law Center, Legal Voice and Chicago Alliance Against Sexual Exploitation.
On July 3, an amended lawsuit was filed by NWLC, adding seven new plaintiffs, each one of whom has experienced sexual harassment or assault and will be harmed if the rule goes into effect. The NWLC claims that the rule is illegal because it violates the Administrative Procedures Act and the U.S. Constitution’s Equal Protection Clause.
State A.G.s File Lawsuit to Block Implementation – Additionally, 18 states Attorneys General filed a lawsuit in early June claiming that the new rule unlawfully narrows the definition of “sexual harassment” under Title IX. The A.G.s took issue with the new definition of what constitutes sexual harassment, that is, it must be: “severe, pervasive, and objectively offensive” to create a hostile environment. Under this extreme definition, students must endure repeated and escalating levels of harassment before the school is required to act. In other words, students have to endure for an extended time the abuse and it has to be severe. The lawsuit also attempts to block implementation of the rule.
The ACLU also filed a lawsuit on behalf of several advocacy organizations for survivors of sexual assault. The suit argues that the new regulations in and of themselves are discriminatory and challenges the new definition of sexual harassment: Actions that are “so severe, pervasive, and objectively offensive that is affects a person’s equal access to the school’s program or activity.” In essence, a student must suffer from extended and traumatizing harassment to the point where they are not able to fully participate in classes or other school programs. That is not what Title IX originally intended; this Civil Rights law was meant to address such behaviors and to take action to stop such behavior and to assure that students were able to continue their education without long-lasting harm.
This new restrictive definition leaves is up to school officials to determine just how extreme is extreme and whether it is “objectively” offensive. Objectively offensive is, of course, will likely be dependent upon the official’s own sense of offensive. We know from sad experience that, in general, males would have a view of “offensive” that is dramatically different from what women, in general, would have. In any event, NOW believes that the new definition is intended to allow school authorities to decline to respond to most sexual harassment complaints.
Equal Means Equal (EME), an organization which has focused on the Equal Rights Amendment among other issues, sued Secretary Devos in 2017 when she first issued interim rules weakening Title IX. EME sued on behalf of three women who were sexually assaulted in campus-based incidents. The organization again sued when the rule was issued in early May of this year removing longstanding rights to equality and “equitable“ redress when [survivors] report sex discrimination, including sexual assault, on campus. The group said that the rule would subject women to second-class treatment and allow violence against women to contiue on college campuses.
Sexual Harassment, as it was defined in a 2001 Title IX Guidance, is unwelcome conduct of a sexual nature. Sexual harassment can include unwelcome sexual advances, requests for sexual favors and other verbal, nonverbal, or physical conduct of a sexual nature. Said behavior can deny or limit on the basis of sex, the student’s ability to participate in or to receive services, benefits or opportunities of the school’s program.
Not surprisingly, this regulatory action taken by Betsy DeVos and the Department of Education has received considerable pushback from students, student organizations, institutions, political leaders, mental healthcare institutions and individuals, and more. Numerous lawsuits are an indication of how many organizations and officials are concerned about what the new rule will mean for student safety.
In fact, many organizations and leaders have been wary of this regulatory action long before it became final. In November 2018, Reps. Jackie Speier, Lois Frankel, and Brenda Lawrence, the leadership of the Democratic Women’s Working Group, and 77 other House colleagues sent a letter to DeVos condemning her then proposed changes to Title IX. The letter urged Secretary DeVos to withdraw these dangerous proposed policy changes and arrange meetings with a broad range of survivors and survivor advocacy organizations to develop meaningful guidance on Title IX that protects
They wrote, “This rule is a blatant attempt to silence survivors of sexual harassment and violence and force them back into the shadows. A year after the #MeToo movement went viral, we will not tolerate a system that shames and blames victims,” the Representatives said. “The epidemic of sexual harassment and violence in our K-12 schools and on college campuses continues to be a threat to students’ rights to pursue their education. We cannot condone proposals that will result in fewer survivors coming forward to report their assaults and make it harder for those who do to seek justice. You must do more, not less, to ensure the safety of students across the country.”
In early 2019, Toni Van Pelt and the National Organization for Women wrote to Kenneth L. Marcus, the Secretary for Civil Rights in the DoEd, in strong opposition of the then proposed regulation changes. NOW and 120,000 other parties submitted formal comments in early 2019 strenuously objecting to the proposed rule. We stressed that this rule is harmful to all students, but it is especially harmful for women and girls, LGBTQ+ individuals, and students of color. In addition, we emphasized how important it is to retain the current policies to enable schools to carry out programs aimed at preventing sex discrimination, harassment and assault, while also promoting student safety and supporting students’ equal access to education.
Previous to that – in the fall of 2018, Van Pelt, NOW staff members and interns testified in person at the Office of Management and Budget about how dangerous such changes to Title IX would be to students. And, we submitted formal comments to the Department of Education, in February of this year, strongly objecting to the expansion of religious or moral exemptions in Title IX programs. We wrote that this rule “threatens essential services used by all students, but that it is the most vulnerable students that will suffer from their absence…mostly likely women and members of the LGBTQIA+ community.”
HERE’S WHAT THE NEW TITLE IX RULE WOULD DO:
Betsy DeVos and Department of Education’s new Title IX ruling is dangerous for all students. Here are five ways, as outlined by the National Women’s Law Center, that the new Title IX rule weakens protections against sexual harassment in schools:
- These regulations ignore victims. Schools will be allowed—and in many cases, forced—to dismiss sexual harassment complaints by students who are harassed in the wrong place, tell the wrong person about it, or simply didn’t sign a formal written complaint.
Schools will now be required to dismiss all complaints of sexual harassment that occur outside of a school program activity, or locations where the school has “substantial control” over both the respondent and the context of the incident, or those that occur in a building owned or controlled by a college or university. Previously, schools were required to investigate ALL complaints, regardless of where they occurred and if the incident had affected the victim’s ability to participate in classes and other school activities. This will be devastating for students who are sexually assaulted in off-campus housing or a fraternity/sorority house, or for those who are harassed or stalked online outside of a school-sponsored program and thus forced to continue attending class with, or instructed by, their rapist or abuser.
Institutions now will be allowed to ignore all incidents unless the Title IX coordinator or a school official with the authority to institute corrective measures is aware of the incident. So, institutions can ignore all sexual harassment by a student or school employee unless someone in a small subset of high-ranking employees knows of the incident. They are in no way obligated to address incidents that have been reported to any other employee…even if that incident occurs off-campus, even if it is perpetuated by a professor, and even if it occurs in the context of the professor’s “job or duties.”
Previously, institutions were required to investigate any complaints of sexual harassment; now, schools will be required to dismiss any complaints that do not fit one of three stringent definitions of sexual harassment. Arguably, schools are required to ignore complaints unless the victim can prove that the harassment has affected their ability to perform academically. This will often require that the victims endure repeated and escalating levels of abuse before their school intervenes, and at this point some may have already dropped out. Sexual harassment should never be the end to anyone’s education.
Institutions are no longer allowed to investigate complaints if the victim has graduated/transferred/dropped out, even if the abuser is still enrolled or teaching at said institution. They are also not allowed to investigate cases in which an individual not enrolled (a high school visitor, for example) accuses someone who is enrolled or teaching at the institution.
Similarly stated above, institutions are now allowed to dismiss complaints (even if the case is pending or a hearing is ongoing) if the ABUSER is no longer enrolled or employed by the institution. This also means that schools can no longer provide supportive measures to survivors if their abuser is no longer in the legal picture. Another disturbing result of this is that if an employee retires or resigns after years of student abuse are brought to light, the school will no longer have to investigate the size and scope of the abuse, the effect on the student body, and whether or not other employees knew of the situation.
Schools are no longer required to investigate reports unless there is a formal complaint filed by the victim (or their legal guardian) or signed by the Title IX coordinator. This is incredibly dangerous for children, who often verbalize their complaints, or a student with disabilities that may inhibit their ability to read, write, or sign such a document.
- These regulations mistreat victims. Even if a sexual harassment complaint isn’t dismissed, and so long as the school’s response is not clearly unreasonable, schools will still be allowed to treat the victim poorly, regardless of whether the victim feels safe enough to learn.
Previously, schools were required to respond to claims by investigating, providing remedies, and preventing the harassment from occurring again. Now, responses are deemed acceptable as long as they are not “unreasonable” or “indifferent,” regardless of whether the victim feels safe again in school. This perversely gives students less protections in comparison to workplace harassment protections for adults and has been described as “absurd” and “confusing.”
- These regulations allow for unfair investigative procedures. If a victim can get an investigation, their school will still be allowed—and in many cases, required—to use unfair, re-traumatizing procedures that aren’t required for other types of misconduct.
These new regulations create unnecessary delays; presuming the victim is lying about the harassment; re-traumatizing the victim through direct, live cross-examination; and using an unfair standard of proof that favors their rapist or abuser:
- Unnecessary delays: The DoEd previously recommended that schools finish investigations within 60 days. If there was a criminal investigation, schools were required to promptly resume investigation as soon as law enforcement was done gathering evidence rather than when the ultimate outcome had been announced for the sake of time. Now, schools are allowed to delay their Title IX investigations if there is an ongoing criminal investigation. This will make it especially hard for K-12 students, as most K-12 employees are required by state law to to report abuse to the police, thus triggering a criminal investigation. Survivors have noted that many investigations take between 180-519 days to resolve, even without criminal investigation. When this process is dragged on without resolution or relief, this forces survivors to relive their trauma for drastic periods of time.
- Presumption of no sexual harassment: Schools are now required to start all sexual harassment investigations with the presumption that no sexual harassment occurred. This perpetuates the sexist myth that women and girls frequently lie about being sexually assaulted and tilts toward the favor of the sexual harasser.
- Re-traumatizing live cross-examination: Survivors and witnesses will now be forced to submit to cross-examination by the respondent’s advisor of choice if they want their statements to be considered evidence by the school. There are no restrictions on who this advisor might be: they could be an angry parent, a fraternity brother and confidant, or even one of the survivor’s instructors. This cross-examination will occur without the legal protections that are available in courtroom proceedings, ensuring that survivors will be re-traumatized or deferred from even coming forward at all. This often makes it difficult to deliver an accurate testimony, thus inhibiting the Department’s stated goals of discovering the truth.
- Tilted standards of truth: Previously schools were required to use the “preponderance of the evidence” standard, or “more likely than not” in all sexual harassment investigations. Now, schools can choose between using this standard or the “clear and convincing evidence” standard. This tilts the scales in favor of the respondent, and to only use this for sexual harassment cases is discriminatory. This rule is dangerously based on the myth that those who report sexual harassment are less credible than students who report other types of misconduct.
- These regulations allow for harmful responses. Schools will be allowed to provide other harmful responses to sexual harassment, such as coercing survivors into participating in mediation with their assailants in student-on-student cases.
Schools were prohibited from using mediation to resolve sexual assault complaints, as it assumes both parties responsible, allows assailants to pressure survivors into inappropriate resolutions, and requires direct interaction which may be traumatizing to the victim. This is now permitted for student-on-student cases of sexual assault.
Supportive measures are steps that schools are required to take to ensure that sexual harassment does not interfere with a student’s education. Previously, schools were instructed to minimize the burden of these measures on the complainant and now, schools will be prohibited from providing supporting measures that are “disciplinary “ or “punitive” to the assailant.
- These regulations provide no notice of religious exemptions. Religious schools that intend to discriminate based on sex will not have to tell students that they are claiming a religious right to violate Title IX. This will especially harm women and girls, LGBTQ+ students, pregnant or parenting students, and students who access or attempt to access birth control or abortion.
The Department of Education is assuring schools that they will not be required to claim a religious exemption form Title IX exemption from the DoEd or give students or their families any notion that they are claiming a religious exemption, before they engage in sex discrimination. Schools can simply claim a religious exemption after they are already under investigation for violating Title IX.
DeVos has also proposed expanding the religious exemption rule allowing more institutions to discriminate on the basis of sex in the name of religion. This means that a school could discriminate based on religious “moral” principles such as “modesty” and “purity” as well secular principles of “honesty” and “fairness.”
These provisions based in religious principles will be especially dangerous for women and girls, LGBTQ+ students, pregnant students, students with children, and students who attempt to access reproductive healthcare.
NOW Government Relations and Public Policy Intern Maia Brockbank contributed in the preparation of this statement.
SOURCES
https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf