At the end of April, Education Secretary Betsy DeVos released the final version of new Title IX sexual harassment guidelines set to roll out on August 14th. These changes reverse progress that was made during the Obama Presidency to protect victims of sexual harassment and assault on college campuses.
After presenting the proposed new rules in 2017, Ms. DeVos faced massive pushback from sexual assault victims and victim advocates. They claimed the changes would put an undue burden on accusers and force them through an unfair process should they chose to come forward.
According to Ms. DeVos, these new guidelines will protect the “presumption of innocence and due process” in sexual assault cases. For critics, these new rules empower offenders and will discourage sexual assault victims from seeking help or justice.
Title IX is a federal civil rights law that states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Under this law, all schools and colleges which receive federal funding (which is almost all of them) must comply with regulations introduced under the law. This provision was a central tenat of the 20th Century Woman’s movement and has been a way of enforcing equality between the sexes.
In 2011, Obama released what is now known as the “Dear Colleague Letter”, which was not a law but rather guidelines and expectations for schools when handling sexual misconduct cases. It is known for lowering the standard of evidence in these cases to “by a preponderance of evidence” which holds the accused accountable if it is “more likely than not” the assault occurred. Before this, many schools went by a “clear and convincing” standard which required the accuser to provide more proof that the misconduct took place.
Sexual assault on college campuses received intense media and scrutiny around this time, with some victims successfully suing their college for improperly handling their sexual assault cases. Colleges like Stanford and Duke came under attack for high profile sexual assault cases where they failed to take appropriate action. Supporters claimed that this was a sign that sexual misconduct on college campuses was finally being given the attention it deserves, and critics claimed that the accused were having their education marred without due process.
Betsy DeVos seems to favor the critics, as she has met with multiple organizations that fight for the rights of the accused, including a men’s rights group, The National Coalition for Men. Her final document of the Title IX changes is over 2,000 pages, but outlined below are the major changes you should know about.
Schools are required to allow the accused to cross-examine the accuser.
The 2011 guidelines warned against allowing cross-examination of a potential victim, because “allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.” Now, either the representation for the accused or the accused student themself has the right to ask questions directly to the reporting student. The new change does allow the two to be in different rooms if one requests. Critics claim that this may silence and discourage victims from reporting their assault.
The burden of evidentiary proof is increased.
Schools may now choose between “by a preponderance of the evidence” or “clear and convincing” when deciding these cases.
The definition of sexual harassment is more strict.
The guidelines maintain that the definition of sexual harassment is “so severe and pervasive that it effectively denies a person access to a school’s education program or activity.” The new rules add that sexual harassment must be evaluated by what a “reasonable person” would say it was.
It is harder to hold schools legally accountable for inaction.
By 2011 standards, schools could be held accountable for failing to act when they “reasonable should” have known about an event of harassment or assault. Under the new rules, schools must have “actual knowledge” that the event occurred.
Because these guidelines have been introduced while schools across the nation are shut down in response to COVID-19, the changes may not receive the pushback they otherwise would have. However, the new rules could be reversed if Democrats win the Senate in November and keep the House.
So far, Republicans have supported the changes and claimed that they are fair. Ms. DeVos supported her move to introduce the changes during a pandemic, claiming that schools had plenty of time to prepare and that “civil rights really can’t wait.”
According to Shiwali Patel, director of Justice for Student Survivors and senior counsel at the National Women’s Law Center (NWLC), “We view these rules as requiring schools to use procedures that treat victims unfairly,” and that these changes will “make it harder for students who have experienced sexual harassment to come forward and to get the help that many need.”