In September 2017, the U.S. Department of Education rescinded Title IX guidance implemented in 2011 with promises to create new rules that would make the Title IX process clearer for schools. This November, the Department finally released their much anticipated rule changes and the rules are devastating for survivors.
New Rules Make Schools More Dangerous
Under the new rules, the Department severally limits a school’s responsibility to address sexual assault. The proposed rule changes state that a school is required to address sexual harassment only when the school has “actual knowledge” of sexual harassment against a person in the United States in their education program or activity. These rules consider a school to have “actual knowledge” only when a report is made to the Title IX Coordinator or “to another official with the authority to implement corrective measures on behalf of the school.” The proposed rule completely eliminates the “responsible employee” role and instead forces survivors to navigate a confusing definition and hope that the person they have chosen to report, is actually someone who has the authority to help them. Sexual harassment, including sexual violence, is traumatizing to survivors, limiting the number of faculty and staff that can assist them in those first steps to reporting, is a step in the wrong direction. This definition makes schools more dangerous for the entire campus community.
Further, even if a student does disclose to the correct person, the school may still not be required to act if the assault did not occur during a school sponsored education program or event. The rules define “education program or event” as “a location where the school owned the premises; exercised oversight, supervision, or discipline; or funded, sponsored, promoted, or endorsed the event or circumstance.” This definition completely disregards assault happening off-campus, which means if a student is assaulted off-campus they will be forced to continue to attend school with their abuser. For perspective, at the University of Maryland, College Park 59% of the student population lives off-campus. Additionally, because the definition states that the assault must be against a person in the United States, students who are assaulted during study abroad programs will be left without any recourse against their abuser. This is in conflict with Maryland state law that determines that sexual assault policies apply to “each student, faculty member, and employee of the institution”. The Department is leaving many students, including students in study abroad programs and students who live off-campus, without any recourse against their perpetrator.
Under the proposed rules, sexual harassment is defined as “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 recipient’s education program or activity.” This definition would only consider the most extreme forms of sexual violence as sexual harassment. In fact, this definition would require students to deal with more severe forms of sexual harassment than employees must deal with in their work environment under Title VII. Under Title VII, sexual harassment is any unwelcome conduct that creates a work environment that a reasonable person would find intimidating, hostile, or abusive. This definition would require students to leave school before the harassment would rise to a level necessary for investigation under Title IX. The effects of this definition run counter to the reason Title IX was established – to ban discrimination in schools and allow individuals to stay in school regardless of their gender. The Department of Education cannot implement this definition without running afoul of the true purpose of Title IX.
Finally, the Department proposes that schools establish grievance procedures that include not only a live hearing, but also an opportunity for a respondent’s advisor to cross-examine the complainant. Cross-examination is not appropriate for student misconduct hearings. Allowing the practice of cross-examination will have devastating consequences on survivors. Maryland law allows all parties to participate in the disciplinary process, which includes allowing each party to ask the opposing party questions through a neutral investigator or “adjudicating official or body.” When an impartial investigator questions each party, the party’s right to have their questions answered is preserved, while traumatization is minimized.
MCASA Working for Survivors
The above mentioned topics are just a few of the ways these new rules would fail survivors but there are many more. MCASA submitted comments to the Department of Education on the proposed rules expressing our concern for the changes. MCASA is committed to protecting all student survivors and ensuring that students are able to attend a school free from sexual violence.
 Nondiscrimination on the basis of sex in education programs or activities receiving federal financial assistance, 83 Fed. Reg. 61462 (Proposed Nov. 29, 2018) (to be codified at 34 CFR 106) at 61466.