Proposed Changes to Title IX: A Disaster in the Making?
Why We Need to Care Right Now
by Emily Dreher, Unspoken Voices
According to a New York Times report, education secretary Betsy DeVos is proposing changes to Title IX regulations about sexual misconduct in colleges. Schools would only be required to investigate formal complaints that take place on campus, and a higher standard of evidence and a stricter definition of sexual harassment would be put into place. Also, the accused could be considered victims of sex-based discrimination based on the school’s treatment.
That’s a lot to take in, so let’s break it down...
What is Title IX?
A federal civil rights law was passed in 1972 that banned sex-based discrimination in schools that get federal funding — from local districts to state colleges, so not private elementary, middle schools, high schools or colleges. This initially applied to things like equal opportunities in participation and hiring.
Expansions of Title IX
In the ’90s, the Supreme Court ruled that schools are required under Title IX to address student complaints of sexual harassment.
The Obama administration, building off federal guidance from the past decade, put forth recommendations in a 2011 letter. Notably, the letter stated that sexual harassment included sexual violence. It also said that schools that receive federal funding have an obligation to investigate sexual misconduct because it interferes with the victim’s right to an education. In school investigations, both parties had to be treated equally in hearings with regard to proposing evidence, accessing evidence, access to lawyers or representatives, and notice of the outcome.
Changes under the Trump Administration
DeVos rescinded those 2011 guidelines last year, claiming they didn’t help anyone and, to some, addressing criticisms that the Obama rules were too harsh on the accused’s due process rights.
Around the same time, the education department issued its own temporary version of the guidelines that included fewer victim-friendly measures such as letting colleges choose from two standards of evidence, making appeals processes optional, and allowing the accused to cross-examine the victim during a hearing. Plus, they appeared to change the definition of sexual harassment from the previous standard of any unwanted sexual advances, comments, or harassment to “sexual misconduct that is severe, persistent or pervasive.”
However, each state has its own laws about sexual assault, and each institution has its own internal policies, so it’s hard to tell whether colleges adjusted their policies based on DeVos’ rollback.
So what are some of the new rules and how we should weigh them?
- Keeps earlier victim support measures intact (schools are allowed, for example, to let students move, change their class schedule, ask for deadline changes, get additional security or escorts)
- Schools must be quick and impartial in investigations (same as before, but no further details or specific measures given)
- Maintains severity and pervasive definitions of sexual misconduct
- Colleges are only required to investigate incidents that happen on campus
- Only formal complaints made to an “official who has the authority to institute corrective measures” require investigation (so a verbal complaint to an RA or a professor probably wouldn’t count)
- Schools must be proven to be “deliberately indifferent” to be held accountable for not addressing misconduct
- The way a school treats the accused can count as sex-based discrimination
What does it all mean?
Several of these measures would make it harder for victims to seek justice. The biggest blows would be the on-campus and formal complaint requirements. Plenty of students live off campus, and it seems like school-sponsored activities that take place off campus, like a conference or a game, would not be in the school’s realm of responsibility. And if complaints can only be made to certain people, what happens if those people are the ones being accused? The reporting requirement is an additional burden for LGBTQ individuals who would have to out themself to a person in a position of power.
These changes could mark the first time the government is setting hard rules instead of guidelines by spelling out what schools are legally required to do. But again, laws and policies vary by state and institution, so it’s likely schools would have to sort out what aspects of a federal policy would apply that don’t interfere with state or local laws. Then it raises the question of what schools would do if they disagree with the new regulations and how much freedom they have to make their own policies.
What’s the outlook?
A lot is unclear. It’s unknown whether these rules would apply to all federally funded schools and not just federally funded colleges and universities. And like with previous rules, it’s not clear whether these investigations would apply to staff or faculty experiencing assault or harassment rather than just students.
Also, we’re only working off of information from one news outlet for a proposal that could be revised before being officially released. However, once announced (likely in the next few weeks or so), the proposed regulations will undergo a public comment period before going into effect. Congress would not be involved, but that doesn’t mean it’s going to automatically go into effect with the iron rule of law and change every school’s policies.
It’s still worth noting that this would continue to undo policies and replace them with ones that come off as unfriendly to victims and ultimately not helpful to people who are accused. We don’t know if the new regulations would suggest or support preventive education or hold perpetrators found to be at fault accountable.