By Rebecca Berkowitz, College and Prevention Policy Attorney
In the middle of a pandemic, the Department of Education released harmful new Title IX regulations that will drastically change how schools respond to, and protect students from, sexual harassment. If the regulations survive legal challenges, they will go into effect on August 14, 2020.
Title IX is a Federal civil rights law that prohibits schools that receive federal funding from discriminating on the basis of sex. Sexual harassment is an umbrella term that includes sexual assault and verbal harassment, and it is considered a form of sex discrimination under Title IX. In Fall of 2018, the Federal Department of Education proposed drastic changes to the regulations that interpret Title IX. These changes weaken protections for survivors of sexual violence and prevent schools from efficiently responding to harassment. After a brief public comment period, the Department of Education received over 124,000 comments, most of which were against some or all of the proposed changes. MCASA was one of the many survivor-advocacy agencies that submitted comments, asking the Department to reconsider.
Despite the record number of negative comments, the Department released the finalized new regulations in May 2020. Now, while schools struggle with the pandemic, distance learning, and an uncertain future, they must also completely overhaul their Title IX policies to comply with the new regulations which, in addition to being harmful to survivors, are onerous and confusing for school administrators.
The new regulations are designed to protect perpetrators of sexual violence from consequences and to limit schools’ responsibility to investigate and adjudicate sexual harassment complaints. Among other harmful provisions, the new regulations:
Prevent schools from responding to sexual assault that does not occur on campus or in a location that is controlled by a school-sanctioned student organization. This means that when a student is sexually assaulted in off-campus housing, during a party at a nearby bar, or by another student in their own home, the school must dismiss the resultant Title IX complaint. The effect of this provision will be that students may be forced to attend class or lives in dorms with the perpetrators of their sexual assault, provided the assault happened off-campus. K-12 schools and colleges that do not have on-campus housing will not be able to investigate and adjudicate the vast majority of sexual harassment incidents affecting their students.
Change the definition of sexual harassment, raising the bar for what conduct is considered severe enough to warrant a school’s response. Previously, sexual harassment was broadly considered unwanted sexual conduct. Under the new regulations, schools will only be permitted to investigate conduct that is a physical sexual assault, is an explicit request for sexual favors by a faculty member, or is so “severe, pervasive, and objectively offense” that it denies the student equal access to education. This new definition means that schools must dismiss complaints if the conduct isn’t extreme or frequent enough. Students may be forced to endure escalating aggressions before the school will respond. If a student is able to continue to access their education despite enduring repeated, verbal sexual harassment, the school can say that the student is not being denied equal access to education and therefore the school cannot respond under Title IX. At the same time, schools are no longer allowed to investigate complaints by students who, due to the severity of the harassment, have dropped out and are not actively seeking to re-enroll.
Require colleges and universities (though not primary and secondary schools) to have live, adversarial hearings and to subject survivors to cross examination before making a determination of responsibility. Under the new regulations, survivors will have to endure questioning from their perpetrator’s “advisor,” who could be an attorney, a fraternity brother, an angry parent, or really anyone. This requirement will have a chilling effect on reporting as survivors, who have already endured a traumatic experience, may not want to report and be subjected to cross examination. In addition, this new requirement, like much of the new regulations, singles out sexual harassment and treats it differently than all other forms of student misconduct. A student who is accused of non-sexual assault or racial discrimination will not have the right to cross examination, but allegations of sexual assault or sex discrimination are subjected to a much stricter, quasi-judicial process before the school can take action against a perpetrator.
Force schools to tell the parties in Title IX cases that they presume the accused party is innocent until the conclusion of the disciplinary process. This means that schools will have to tell sexual assault victims that, essentially, there is a presumption they are lying until the disciplinary process concludes and they can prove otherwise. The “innocent until proven guilty” presumption is a staple of our criminal justice system, but it is inappropriate in the school setting. Title IX complaints are not criminal charges, and forcing the school to presume that the perpetrator did not commit sexual harassment unfairly tips the scale in favor of the accused student, to the detriment of the survivor.
These are just a few of the many changes that harm survivors and let perpetrators and school officials off the hook for sexual harassment. The good news is that legal challenges have already been filed, with more expected over the summer. The goal of these lawsuits is to block the implementation of the new regulations.
