The U.S. Department of Education withdrew Obama-era guidance on Title IX and sexual assault at schools and college campuses late last month, and released interim guidance while it seeks public input to inform a new policy “that better serves students and schools.”
While discussions on the sexual assault guidance have largely focused on its effects on college and universities, advocates for sexual assault victims said moves by U.S. Secretary of Education Betsy DeVos to revise the directive could affect K-12 schools, too.
The Obama administration created the guidance in response to concerns that colleges and universities weren’t doing enough to address the problem of sexual assault in higher education settings.
But the directive helped clarify the responsibilities of educational institutions at all levels, advocates said. 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.
Release of the guidance under Obama was followed by an uptick in Title IX complaints, including dozens at elementary and secondary schools.
Whatever changes DeVos ultimately makes, advocates fear that revisions—coupled with a shifting approach to education civil rights under the Trump administration—could cause school districts to deprioritize compliance with Title IX after a time of great momentum on the issue, Chaudry said.
Others praised DeVos’ actions, saying clarity is needed to protect the due process rights of those accused of sexual assault.
The 2011 Obama directive 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 could take action if a “preponderance of evidence” showed that a violation occurred, which is a lower standard than is used in criminal matters.
The interim guidance DeVos released does not require schools to use that lower standard of evidence. The standard of evidence schools use in a sexual assault case need only be “consistent with the standard the school applies in other student misconduct cases,” the new guidance says.
Some conservative groups have said the Obama-era guidelines led to “kangaroo courts” on college campuses, where the rights of the accused were not respected. Advocates 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.
DeVos 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.”
A touchstone Title IX case centers on K-12 schools. In the 1999 Davis v. Monroe County Board of Education case, 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 is 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 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 Obama-era directive was released, NSBA General Counsel Francisco Negrón 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, he said.
“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?”
Negrón 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.”
A version of this article appeared in the October 04, 2017 edition of Education Week as DeVos Gives Schools Options on Handling of Sexual Assault