U.S. Secretary of Education Betsy DeVos announced Thursday plans to revise Obama-era civil rights guidance on Title IX and sexual assault, a move that could affect elementary and secondary schools.
While discussions on that directive largely focused on its effects on college and universities, advocates for sexual assault victims said it helped clarify the responsibilities of educational institutions at all levels. That clarity benefited K-12 schools, which have often lagged in their responsibilities to investigate assaults, to appoint Title IX coordinators, and to ensure that survivors of such incidents are free from fear and harassment from perpetrators, said Neena Chaudhry, the director of education for the National Women’s Law Center, which supported the guidance.
“There was enough attention on the issue that schools were finally trying to get it right,” she said.
Others praised DeVos’ plans Wednesday, saying clarity is needed to protect the due process rights of those accused of sexual assault.
The 2011 Dear Colleague letter detailed how, under Title IX’s provisions about sexual harassment, schools and higher education institutions should work to respond to acts of sexual violence—both those that occur on campus and those that happen off campus but affect the school environment. Schools have an independent responsibility under Title IX to investigate complaints of harassment and assault apart from separate criminal investigations led by law enforcement, the guidance said. And they can take action if there is a “preponderance of evidence” that a violation occurred, which is a lower standard than is used in criminal matters, the guidance said.
Some conservative groups have said the guidance led to “kangaroo courts” on college campuses, under which the rights of the accused were not respected. Advocates for the guidance said it created a balance in power between accusers and those who’d been accused and that problems highlighted by critics were often due to poor implementation, not a problem with the guidance itself.
DeVos did not announce specific changes to the guidance in a speech at George Mason University Thursday. She said the Education Department would update the guidance after seeking public input.
“In order to ensure that America’s schools employ clear, equitable, just and fair procedures that inspire trust and confidence, we will launch a notice-and-comment process to incorporate the insights of all parties in developing a better way,” DeVos said. “We will seek public feedback and combine institutional knowledge, professional expertise and the experiences of students to replace the current approach with a workable, effective and fair system.”
Whatever changes DeVos ultimately makes, advocates fear that the revisions—coupled with a shifting approach to education civil rights under the Trump administration‐could cause school districts to step off of the gas in ensuring compliance with Title IX after a time of great momentum surrounding the issue, Chaudry said. Release of the guidance was followed by an uptick in Title IX complaints, including dozens at elementary and secondary schools.
A touchstone Title IX case centers on K-12 schools. In the 1999 Davis v. Monroe County Board of Education, the U.S. Supreme Court sided with the family of a 5th-grade girl who argued that her school district had violated her right to equal educational opportunities when it did not adequately respond to sexual harassment from another student.
Similarly, K-12 schools are obligated to address students’ concerns about assault and harassment, even if the accused are not found criminally liable, Chaudry said. Those responses might include moving students into different classes so they don’t have to interact with each other. And that doesn’t always happen, she said.
“We have seen many many cases of schools at the K-12 level completely abandoning their Title IX obligations, not following them at all,” Chaudry said. She cited a recent lawsuit in which the National Women’s Law Center asserts that a Pennsylvania district encouraged a female student to enroll in an alternative school rather than separate her from an ex-boyfriend who she said was repeatedly harassing her.
Some K-12 education groups, including the National School Boards Association, have been involved in discussions with DeVos about the Title IX guidance. At the time the directive was released, NSBA General Counsel Francisco Negron had some concerns.
“Offering districts guidance that’s useful ... can help them keep students safe,” he told Education Week at the time. But it also raises some questions. “Our concerns are that the requirements of the law not be interpreted in an overly expansive way,” he said. “Do you treat every incident of sexual violence as inherently creating a hostile environment?”
Mr. Negron said districts also need more clarification on when an off-campus episode rises to the level of requiring school district action.
“Say the allegations haven’t been proven,” he said. “It’s not clear from the department’s guidance what the district’s responsibility would be. We don’t want [school districts’] measured decisions chilled by fear of litigation.”