U.S. Secretary of Education Betsy DeVos released a long anticipated rewrite of federal Title IX guidance earlier this month that allows schools to raise the bar on what evidence is needed to prove claims of sexual assault and harassment.
The guidance replaces an Obama-era civil rights directive that DeVos revoked in September 2017. Secretary DeVos claimed that guidance didn’t do enough to protect the due process rights of the accused.
Her move, and the new guidance released this week, face intense criticism from women’s groups that say the rewrite doesn’t do enough to protect students who’ve been victims of sexual assault and harassment.
“Throughout this process, my focus was, is, and always will be on ensuring that every student can learn in a safe and nurturing environment,” DeVos said in a statement. “That starts with having clear policies and fair processes that every student can rely on. Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined.”
The new rules dictate when schools are obligated to intervene to address sexual victimization and when those obligations kick in.
While most of the debate over Title IX—the federal law that prohibits sexual discrimination in education—has centered on colleges and universities, the new civil rights guidance will affect K-12 schools, too.
Some survivors’ advocacy groups fear the changes will cause K-12 schools to “step off the gas” in improving how they address assault and harassment when they say many are already failing to provide adequate Title IX support to students.
“Generally speaking, K-12 schools have an even longer way to go than colleges and universities as far as access to justice for survivors” of sexual assaults, said Lara Kaufmann, the director of public policy for Girls Inc., an organization that serves and advocates for girls.
K-12 students are more likely to be subjected to sexual assault or harassment than some might think, she added. Seven in 10 girls experience harassment before they leave high school. And 1 out of 4 girls experience a sexual assault or abuse before turning 18, she said.
Criticism and Praise
Sen. Lamar Alexander, R-Tenn., chairman of the Senate education committee, praised the changes and said they “bring much needed clarity to the federal rules helping colleges protect the safety and rights of students.” He also praised DeVos for inviting public comment and review of the new guidance. After it is published in the federal register, the public will have 60 days to comment as part of the rulemaking process.
“The department’s approach seems to balance fairness and support for survivors,” Alexander said in a statement.
Rep. Bobby Scott, D-Va, the ranking member of the House education committee, issued a statement calling on the administration to “scrap this proposal and join the effort to make college campuses and school classrooms safer and more welcoming for all students.”
“The bottom line is that by allowing schools to use this new process and evidentiary standard, this rule would make it harder for survivors of sexual misconduct to achieve justice,” Scott said.
The guidance has several implications for K-12 schools.
The new directive allows schools to shift the threshold that officials use to decide if an assault claim requires a response from the “preponderance of evidence” standard set under the Obama administration to a “clear and convincing evidence” standard, which is a higher bar. Some critics of the Obama guidance had argued that the lower burden of proof threatened the due process rights of the accused.
Schools will be held responsible for addressing a complaint if they have “actual knowledge” that an offense occurred, a higher bar than under the old guidance, which said they were required to intervene if they “reasonably” should have known about a violation. Schools will be faulted if they are “deliberately indifferent” to known sexual harassment, the guidance says.
The directive also defines sexual harassment more narrowly as sexual assault or “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” Under the previous guidance, it was defined as “unwelcome conduct of a sexual nature.”
Narrowing the definition may cause some schools to only focus on repeated conduct, which “fails to take into account the age and developmental level of K-12 students, who are particularly sensitive to sexual harassment,” even on the first offense, Elizabeth Tang of the National Women’s Law Center, said in an email.
Potential Confusion for Schools
The new guidance requires schools to respond to “conduct within its education program or activity,” which may cause some schools to ignore off-campus incidents, like incidents at student parties. It may also create some confusion about whether schools are required to respond to online harassment, like the sharing of explicit photos or demeaning messages.
One attention-grabbing piece of the DeVos proposal will have more of an impact in higher education than on K-12 schools. Under the new rules, students’ advisors would get the chance to cross-examine their accusers in hearings over sexual violence complaints. But those hearings are largely held at college and university levels. Still, Kaufmann, of Girls, Inc., said the move “is alarming nonetheless given the harm it could cause to student survivors.”
One thing the new guidance doesn’t address: the rights of transgender students.
Under separate Title IX guidance, the Obama administration had asserted that the federal law requires schools to allow transgender students to use the pronouns, restrooms, and locker rooms that correspond with their gender identity. In one of her first acts in office, DeVos teamed with then-Attorney General Jeff Sessions to revoke that guidance. It has not been replaced.
