On Wednesday, the Trump administration finalized new Title IX sexual harassment regulations that give unprecedented procedural protections to students facing school discipline for sexual misconduct—protections that students facing other kinds of school misconduct charges are generally not granted.
The regulations now make it much harder to discipline students accused of sexual misconduct than those accused of other much lesser serious infractions, such as plagiarism or substance abuse on campus.
Vanita Gupta, president and CEO of the Leadership Conference on Civil and Human Rights called the Trump administration policy “an abomination” and “the antithesis of what Title IX was intended to do.” Gupta headed the Justice Department’s Office of Civil Rights during the Obama administration and investigated hundreds of schools for Title IX violations.
“This is all part of this administration’s ongoing attempts to undermine the civil rights of students,” said Gupta. “All students deserve an educational environment free from sex discrimination and violence. We will work with our allies to fight this rule and send it to the dustbin.”
How Did We Get Here?
In April of 2011, the Obama administration launched a comprehensive federal initiative to end widespread sexual violence on college campuses and administrative cover ups. After more than 25 years of feminists advocating that the federal government address rampant campus sexual assault, the Department of Education issued a “Dear Colleague” letter, urging schools to aggressively investigate and address sexual harassment and assault of students.
“If a school knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.”
The Obama administration guidance explicitly stated that schools must use “a preponderance of the evidence” as the standard for determining responsibility for sexual misconduct in school disciplinary hearings, meaning the behavior “more likely than not” occurred. And the guidelines discouraged allowing the two sides to cross-examine each other, as it may be “traumatic or intimidating” for the alleged survivor.
Under the Obama administration guidelines, schools began to finally take sexual harassment and assault seriously. And the Justice Department began investigating schools that didn’t.
In 2014, the administration issued further guidance to ensure that schools treated sexual violence seriously. The Obama administration created the White House Task Force to Protect Students Against Sexual Violence, providing resources on campus public safety and trauma-informed practices, including resources for changing campus culture and “1 is 2 Many” public service announcements. The 2015 documentary film The Hunting Ground chillingly illustrated why these regulations were so desperately needed.
By the summer of 2016, the Department of Justice was investigating 195 colleges and universities across the United States for failure to appropriately address sexual harassment complaints on their campuses.
Trump Administration About Face
But all of this came to a screeching halt when the Trump administration took over the federal government in 2017, and began an expansive campaign to reverse the tougher Title IX rules.
In July of that year, the acting assistant director of the Education Department’s Office of Civil Rights Candice Jackson made it clear that she thought women lied about rape and the Obama-era guidelines were unfair to men. She told the New York Times, “the accusations—90 percent of them—fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.’”
Trump’s new Education Secretary Betsy DeVos met with men’s rights groups and men accused of sexual assault, but only begrudgingly met with survivors.
In September, DeVos revoked the 2011 and 2014 guidance and issued a Q&A on Sexual Misconduct with standards much more favorable toward those accused of sexual harassment and assault.
Then in November of 2018, DeVos proposed new regulations that would significantly weaken protections for survivors of sexual assault and harassment, leading schools an opening to begin rolling back protections for survivors of sexual harassment and assault.
In response, people and organizations inundated the Department of Education with 124,196 public comments on the proposed regulations, including a deluge of critical comments. Advocacy groups such as Know Your IX and End Rape on Campus organized students across the country to express their outrage about the proposed rollbacks of protections for survivors of sexual assault and harassment.
Despite this opposition, the Department of Education adopted final regulations on May 6 that significantly erode women’s right to be free from violence and discrimination in schools, colleges and universities across the country.
“Secretary DeVos’s new regulations treat schools like courtrooms, which they are not,” leading sexual harassment legal scholar Jennifer Drobac told Ms. “Title IX mandates equal access to education—but these regulations grossly narrow the definition of sexual harassment and may prevent schools from disciplining offenders unless the harassing conduct is severe, pervasive and objectively offensive.
Drobac continued, “Schools should prohibit and respond to disruptive and discriminatory harassment, even if it may not rise to the level of a courtroom Title IX case.”
The regulations make sexual assault harder to prove and they remove protections for survivors who step forward to report sexual harassment and assault.
For example, the regulations:
- Narrow the definition of what constitutes sexual harassment, from
- Obama administration’s definition: behavior “sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program,” to
- Trump administration’s definition: “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.”
The rules require schools to dismiss complaints that do not meet this definition.
The regulations also:
- Allow schools to resolve cases involving students through mediation rather than investigating, which the Obama administration rules did not allow;
- Require a live hearing, force survivors to be subject to live cross-examination by a representative of the alleged perpetrator, and allow the exclusion of survivors’ testimony if they refuse to be cross-examined;
- Allow schools to require sexual assault survivors to prove their allegations by “clear and convincing evidence,” rather than the usual “preponderance of the evidence” standard used in most other disciplinary infractions such as drug use on campus or plagiarism;
- Exempt conduct that happens in off-campus housing or study abroad programs, even if it impacts the survivor’s education;
- Exempt most online harassment, in direct contradiction to federal appellate court precedent;
- Explicitly require schools to provide “due process protections” to those accused, including their “free speech” rights, and require schools avoid “sex-based biases, prejudices or stereotypes” about alleged perpetrators in the investigation and adjudication process;
- Remove the 60-day timeline for campus investigations, so that schools can run out the clock until students give up or graduate.
These regulations apply not only to college students, but to high school students and even children in middle and elementary schools, with only narrow exceptions from the most draconian requirements, such as live cross-examinations.
In fact, the new Trump rules make it significantly harder for young people to prove sexual harassment in school disciplinary hearings than the law requires for adults to prove workplace sexual harassment in a civil court of law.
The DeVos regulations in effect treat school disciplinary hearings as if they were criminal proceedings in a court of law. The regulations conflate these contexts, giving accused students criminal procedural rights in a school administrative context. Heightened procedural protections such as the right to cross examination and the right to representation are hallmarks of the criminal law system because a defendant’s very freedom is at stake.
But a school disciplinary action is not a criminal proceeding. Instead, it is a determination of whether a student has violated school conduct codes and whether they may maintain the privilege of remaining at the school in light of their misconduct. If we were to apply the new Title IX regulations across all types of misconduct codes, schools would significantly lose the ability to regulate student behavior. As a result, the regulations significantly interfere with schools’ ability to discipline students for sexual misconduct, which will create a dangerous environment in schools in the future.
While DeVos did remove some of the harsh elements of the proposed guidelines in response to public comments—such as blocking schools from taking any interim measures to protect students reporting sexual misconduct—the final regulations are very similar to the original proposal.
One good change she made is directly contradicted by court precedent: the new regulations require K-12 schools to investigate if any school employee has been informed of sexual harassment allegations. But federal court precedent requires students to directly inform high-level officials, such as a superintendent, so this part of the regulations may not survive a court challenge.
Challenges to the Regulations
Fatima Goss Graves, president of the National Women’s Law Center, has vowed to challenge the new rules in court, which are set to go into effect on August 14, 2020—giving schools little time to prepare while addressing the COVID-19 pandemic.
“Betsy DeVos and the Trump administration are dead set on making schools more dangerous for everyone,” says Goss Graves. “If this rule goes into effect, survivors will be denied their civil rights and will get the message loud and clear that there is no point in reporting assault.”
“We refuse to go back to the days when rape and harassment in schools were ignored and swept under the rug,” she continues, “and we won’t let DeVos succeed in requiring schools to be complicit in harassment—turning Title IX from a law that protects all students into a law that protects abusers and harassers. We will fight this unlawful rule in the courts.”
Colorado Attorney General Phil Weiser is also challenging the new rules. “The new rules mandated by the federal government threaten to prevent or discourage victims from coming forward and receiving the justice and protection they deserve,” said Weiser.
