By Alyson Klein and Evie Blad
A flood of parents, educators, higher education organizations, sexual assault victims, and others have told U.S. Secretary of Education Betsy DeVos and her team that they have big concerns about her proposed guidance on sexual assault, including its impact on K-12 schools.
Some quick background: Back in 2017, DeVos yanked an Obama-era civil rights directive governing the handling of sexual assault and harassment, mostly on college campuses, because it didn’t go far enough to protect the due process rights of the accused, in her view. In November, she proposed replacing those Title IX guidelines. Under her changes, schools would decide if an assault happened based on whether there is “clear and convincing evidence.” That’s a higher bar for proving claims than the Obama administration’s guidance, which called for schools to consider a “preponderance of evidence” (essentially, more likely than not).
The education community was given about 60 days, until Jan. 30, to comment on that and other proposed changes. Much of the feedback focused largely on the proposal’s effects on college and university students. The smaller number of comments that focused on elementary and secondary schools were largely critical of the policy. But there are organizations that support the policy more broadly.
No time to read through more than 100,000 comments? Here’s a quick recap of some of the most common criticisms in the K-12 community.
• Narrowing the definition of sexual assault will be confusing for schools and could be harmful to students.
Background: DeVos’ proposal defines sexual harassment 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"—a much broader umbrella.
What the comments say: AASA, the School Superintendents Association, is concerned that this could cause confusion in schools, which have been using the prior standard since 2001. What’s more, they worry that it could hurt children, who would subject to repeated torment until their teachers could intervene.
“Students would be forced to endure repeated and escalating levels of abuse, from a student or teacher, before their schools would be required to investigate and stop the harassment,” wrote Sasha Pudelski, AASA’s advocacy director. She also fears that the new guidance could create confusion by setting different definitions of harassment for employees and students under federal civil rights laws.
Nan Stein, a researcher with the Wellesley Centers for Women who has studied student sexual harassment for 40 years, shared those concerns about the change in definition.
“This would undermine a student’s trust in school staff—if s/he reports once to a trusted adult yet is rebuffed (as the conduct not yet being severe enough), it is hard to imagine that any child or adolescent would attempt another effort to get help if/when the harassment escalates,” she wrote. “I have worked on multiple lawsuits and complaints where this scenario had occurred and the harassment not only lingered but escalated. As harassment is ignored by the adults, the other students are watching and learning a cynical lesson.”
• DeVos’ proposal might block school officials from responding to sexual harassment that occurs off-campus or outside school hours.
Background: DeVos’ proposed Title IX 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 or even online harassment, like the sharing of explicit photos, a big concern for high school principals.
What the comments say: Educators worry that this would make it harder for them to intervene in incidents that have a major impact on student learning, just because they don’t take place inside the school building.
“Part of the proposed rule changes would require schools to ignore a sexual harassment claim outside of a school program or activity,” wrote more than a dozen teachers who are members of the Education Civil Rights Alliance, an advocacy organization. “This change is as short-sighted as it is dangerous. Social Media and smartphones have expanded the reach of damaging and cruel behavior to the homes and hands of our students long after the school day has ended, but the impacts on their safety during the school day are no less.”
Seattle teacher Rachel Peizer said schools need the authority to intervene in out-of-school and online behavior that may have spillover effects on a student’s life at school.
“I have witnessed the daily impact of children’s cruelty towards one another, as well as their deep capacity for kindness and empathy,” she wrote. “If I were unable to address the behavior of my students outside the school day and the impact that carries with it into the educational setting and student’s ability to have a safe learning environment, I would not be able to do my job as a teacher and as a human being ensuring the safety and security of the young people I work with on a daily basis.”
Pudelski expressed similar concerns, noting that schools already discipline students for things that happen off campus, including cyberbullying and drug use. “Why limit how districts can respond to sexual harassment that occurs outside of an education program or activity, when our districts are already responding to other forms of misconduct that occur outside an education program or activity when it impacts a student’s ability to feel safe and learn?” she wrote.
And the Leadership Conference on Civil and Human Rights worried that, “K-12 students harassed or assaulted by a peer on their way to or from school may not be protected, even if the harassment or violence prevents them from accessing an education.”
• DeVos’ proposal might limit which adults are required to respond to claim of assault or harassment.
Background: Under DeVos’ proposal, school employees will be held responsible for addressing a complaint if they have “actual knowledge” that an offense occurred. That’s a higher bar than under the old guidance, which said they were required to intervene if they “reasonably” should have known about a violation.
What the comments say: Educators are worried the change might stop schools from intervening if an incident is reported to someone other than, say, the school’s Title IX director or a K-12 teacher.
“We know young children can form bonds with a host of school personnel whether it be a cafeteria worker, coach, bus driver, janitor or paraprofessional, and we would never want to assume that these individuals should not be obligated to report any potential Title IX violations,” Pudelski wrote.
The Leadership Conference on Civil and Human Rights was particularly worried about the impact of this change on English-language learners and students in special education.
“Such a rule is particularly unworkable for students who are non-verbal, students with physical or intellectual disabilities, and English-language learners, who often have closer relationships with their teacher aides, school psychologists, and other school employees who are not their teachers or the Title IX coordinator,” the organization wrote.
Some other concerns:
• AASA is worried that the changes could open up schools to new and costly litigation, since established definitions and norms would be changing.
Also important to note: A lot of the concerns are about DeVos herself—and they’re pretty personal:
• “This is disgusting! Do you want this to be your legacy?” wrote Joanne Matson of Orangevale, Calif.
• “You will have to answer for your reprehensible policies. Whether it be before the people, or in front of the lord and savior that you claim to believe in. Because god loves everybody,” wrote Kyle Rooker, of Elk River, Minn.
• “It is so disgusting putting our kids at risk like this, for most likely, more yachts for Betsy and more ways to abuse women for men like Donald Trump. All involved should be so ashamed but I already know, you’re not,” wrote Kari Bindell, who did not give her hometown.
Image: Getty Images
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