May 06, 2020
Advocacy groups that support survivors of sexual harassment and assault are vowing to fight against federal rules set to take effect in August governing how all public and private U.S. schools, including higher education institutions, must respond to allegations involving students.
"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."
--Fatima Goss Graves, NWLC
The Trump administration's new rules for Title IX--the U.S. law that bars sex-based discrimination in any education program or activity receiving federal funding--were unveiled Wednesday by Education Secretary Betsy DeVos to replace an Obama-era guidance she suspended in September 2017 after months of meeting with "men's rights" groups.
The final version tempered parts of DeVos' proposed rule replacement from November 2018, which critics condemned as "heartless and immoral." Survivor groups maintain that the new rules still unjustly bolster the rights of the accused and will discourage reports of sexual misconduct.
Fatima Goss Graves, president and CEO of the National Women's Law Center (NWLC), warned in a statement that if these new rules are allowed to take 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," declared Goss Graves. "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."
\u201cNo one should be pushed out of school for experiencing violence \u2014 but that is exactly what the Trump administration\u2019s weakened Title IX rule will do to students. \n\nThat\u2019s why we have to stop it. #HandsOffIX\u201d— National Women's Law Center (@National Women's Law Center) 1588782909
Goss Graves' warning about how DeVos' new rules could impact survivors and promise to take on the federal policy in court were echoed in a statement from Vanita Gupta, president and CEO of the Leadership Conference on Civil and Human Rights.
The Trump administration's policy is "an abomination" and "the antithesis of what Title IX was intended to do," said Gupta. She warned that if the rules take effect, they will silence students who have been subjected to sexual misconduct and limit their educational opportunities.
"This is all part of this administration's ongoing attempts to undermine the civil rights of students," Gupta added. "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."
\u201cBREAKING: @BetsyDeVosED just released final #TitleIX rule, which will silence sexual assault survivors & limit educational opportunity. Unconscionable to do this as students & institutions grapple with teaching & learning during #COVID19. We\u2019ll fight this. https://t.co/uXkp1gIB0T\u201d— Vanita Gupta (@Vanita Gupta) 1588780034
Colorado Attorney General Phil Weiser promptly announced that his state would challenge the federal policy, which would undermine schools' abilitites to adopt stricter policies. Weiser also warned that the new rules "threaten to prevent or discourage victims from coming forward and receiving the justice and protection they deserve."
The New York Timesreported Wednesday on DeVos' overhaul of school Title IX proceedings, which was detailed in over 2,000 pages:
The new regulations narrow the definition of sexual harassment and require colleges to hold live hearings during which student victims and perpetrators can be cross-examined to challenge their credibility. The rules also limit the complaints that schools are obligated to investigate to only those filed through a formal process and brought to the attention of officials with the authority to take corrective action.
Schools will also be responsible for investigating only episodes said to have occurred within their programs and activities. And they will have the flexibility to choose which evidentiary standard to use to find students responsible for misconduct--"preponderance of evidence" or "clear and convincing evidence."
To find a school legally culpable for mishandling allegations, they would have to be proven "deliberately indifferent," in carrying out mandates to provide support to victims and investigate complaints fairly.
DeVos discussed the new policy in a video and said in a statement that it "requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process."
The Education Department framed the development as DeVos taking "historic action to strengthen Title IX protections for all students" and highlighted that "the new regulation comes after years of wide-ranging research, careful deliberation, and critical input from survivors, advocates, falsely accused students, school administrators, Title IX coordinators, and the American people, including over 124,000 public comments."
The Know Your IX project pointed out in a series of tweets how the policy "tips the scales in favor [of] named abusers and protects universities and their bottom lines."
\u201cAs expected, the final rule will: \n\u2705Allow schools to ignore violence that occurs outside of school, like off-campus housing or study abroad, even if it still impacts a survivors\u2019 education.\u201d— Know Your IX (@Know Your IX) 1588779410
\u201c\u2705 Force students to endure repeated and escalating levels of abuse without being able to ask their schools for help. Even one instance of sexual violence is too much, but schools will only be responsible for addressing violence that completely denies someone their education..\u201d— Know Your IX (@Know Your IX) 1588779410
\u201c\u2705 Shield schools from liability for ignoring or covering up sexual harassment. This will significantly impact accountability, allowing schools to claim they weren\u2019t aware of the violence occurring.\u201d— Know Your IX (@Know Your IX) 1588779410
\u201c\u2705 Remove the 60-day timeline for campus investigations, which will be most harmful for survivors as long investigations a deterrent to reporting. Removing this timeframe will allow schools to run out the clock until survivors give up or graduate.\u201d— Know Your IX (@Know Your IX) 1588779410
\u201c\u2705 Allows schools to submit for religious exemption retroactively. This means schools can claim they\u2019re religiously exempt from preventing discrimination AFTER a complaint is made.\u201d— Know Your IX (@Know Your IX) 1588779410
\u201c\u2705 Allow schools to use unregulated mediation processes instead of investigating. Mediation pushes survivors to forgive their rapists and perpetuates the belief that sexual violence is a matter of miscommunication. These processes can intimidate survivors into not reporting.\u201d— Know Your IX (@Know Your IX) 1588779410
While the policy was welcomed by some right-wing campus organizations, critics accused the education secretary of "gutting" Title IX protections for survivors and expressed their outrage on Twitter with the hashtags #DearBetsy and #HandsOffIX:
\u201cPLEASE AMPLIFY: @BetsyDeVosED just issued final rules that regulate how colleges and universities must handle reports of sexual assault and harassment under #TitleIX.\n\nThese rules are harmful to survivors and bolster the rights of the accused. https://t.co/ufXHhZlpzZ\u201d— It's On Us (@It's On Us) 1588786453
\u201cThis new rule rolls back protections for survivors under #TitleIX significantly narrowing the definition of harassment and limiting the cases schools are responsible for. We're glad some schools are creating their own high standards to protect survivors. https://t.co/56IRWvEjGL\u201d— NAESV (@NAESV) 1588781829
Some critics slammed DeVos for unveiling the long awaited policy change in the midst of the coronavirus pandemic, which has shuttered many schools throughout the country for the remainder of this academic year.
\u201cThe Department of Education\u2019s decision to release the final Title IX rule during the COVID-19 national emergency is irresponsible and will harm students and schools. #TitleIX #HandsOffIX #SupportSurvivors\u201d— NYC Alliance Against Sexual Assault (@NYC Alliance Against Sexual Assault) 1588779590
"Betsy DeVos and the Trump administration are dead set on making schools more dangerous for everyone--even during a global pandemic," said Goss Graves. "Releasing this rule during the unprecedented challenges of Covid-19 unveils a disturbing set of priorities."
Gupta concurred. "It is unconscionable," she said, "to do this as students and institutions grapple with teaching and learning during a public health crisis."
In a joint statement Wednesday, U.S. House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) and House Education and Labor Committee Chairman Bobby Scott (D-Va.) said, "It is alarming that instead of focusing on helping students, educators, and institutions cope with the Covid-19 pandemic, the [Education] Department wasted valuable time finalizing a rule that will erode protections for students' safety."
"While the department's stated intent was to secure due process for those accused of sexual misconduct, the actual effect of its rule will be to erode protections for students, weaken accountability for schools, and make it more difficult for survivors seeking redress," added Nadler and Scott. "Both the timing and substance of this rule are unacceptable."
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