The Trump administration released a new rule Wednesday that outlines when and how schools must respond to reports of sexual assault and harassment under Title IX, the federal law that prohibits sex discrimination.
Among the biggest changes: Schools can now 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 to prove claims of misconduct.
The changes came after several years of meetings with assault survivors, “falsely accused” students, advocacy groups, and educators, U.S. Secretary of Education Betsy DeVos told reporters as she announced the rule.
“Ultimately, our action today brings us closer to fulfilling Title IX’s promise: equal access to education for all students,” she said.
The rule defines sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity,” a stricter definition than is used in employment law. Schools will be found in violation of Title IX if they are “deliberately indifferent” to such conduct.
The rule replaces an Obama-era civil rights directive that DeVos revoked in September 2017, when she said that rule didn’t do enough to protect the due-process rights of the accused. DeVos has also criticized the Obama administration for releasing guidance documents, outlining its interpretation of civil rights laws without seeking public commen through a formal rulemaking process. The new regulations carry more legal weight than the previous guidance.
While discussion about the Title IX rule has largely centered on colleges and universities, the changes will also affect K-12 schools, putting them on notice about how the Education Department intends to enforce the gender nondiscrimination law. In response to public comments on a draft rule released in November 2018, the agency made some changes to its final rule.
“We’ve made number of changes to make sure there is a recognition of the differences between public school kids and college students,” Assistant Secretary for Civil Rights Kenneth Marcus said.
Among the key provisions for K-12 schools:
- Schools are required to respond when they have “actual knowledge” of a complaint of sexual harassment, which can include a report to any employee of an elementary or secondary school. That’s compared to the Obama administration guidance, which held schools responsible for incidents they “reasonably should” have been aware of. The recent draft rule had more narrowly limited that reporting responsibilty to Title IX coordinators. Survivors’ advocacy groups say students are often unaware of their rights, and many schools don’t sufficiently publicize who coordinate their Title IX reponse.
- Schools must respond when harassment occurs “in the school’s education program or activity.” After the draft rule, survivors’ advocates raised alarms that off-campus conduct can disrupt education for students. The final rule expands the definition of “program or activity” to include “locations, events, or circumstances over which the school exercised substantial control over both the respondent and the context in which the sexual harassment occurs.” But advocates said that definition still left some gray areas: like online harassment.
- The final rule allows parents or guardians of K-12 students to file complaints on their behalf, and requires parental notification of complaints against their children.
- Unlike colleges and universities, elementary and secondary schools are not required to hold hearings on student complaints.
- The rule requires schools to provide “supportive measures” to students, with or without a formal complaint. That might include providing counseling or changing class schedules to avoid sharing a classroom with the accused, DeVos said.
Sen. Lamar Alexander, R-Tenn., the chairman of the Senate education committee, praised the changes.
“This final rule respects and supports victims and preserves due process rights for both the victim and the accused,” Alexander said in a statement. “For example, the rule ensures victims get the support they need to change classes or dorms if they allege they have been sexually assaulted or sexually harassed and the rule ensures the victim and the accused get a fair hearing to resolve such allegations.
Advocacy groups, who say elementary and secondary schools already struggle to adequately and consistently respond to students’ reports of sexual assault and harassment, have long anticipated the changes.
Groups like the American Psychological Association said Wednesday they feared the new evidentiary standard in the final rule would make it more difficult for students to prove their claims. The National Women’s Law Center threatened to sue to block the regulations.
Washington Sen. Patty Murray, the ranking Democrat on the Senate education committee, panned the changes.
“Let me be clear: this rule is not about ‘restoring balance,’ this is about silencing survivors,” Murray said in a statement. “This rule will make it that much harder for a student to report an incident of sexual assault or harassment—and that much easier for a school to sweep it under the rug.”
Some have also questioned the timing of the new directive. An coalition of 209 education and advocacy groups wrote to DeVos in March, urging her to pause the rulemaking process as schools, colleges, and universities confront unprecedented challenges related to the coronavirus pandemic.
“Moving forward now with a new Title IX rule would only exacerbate these challenges by diverting schools’ already sharply limited resources toward creating complex new policies and training employees on implementation, at a time when schools are already working to radically shift their programs and meet student needs, even while staff operate remotely,” that letter said.
Marcus said Wednesday that administrators should have anticipated the new rule, which has been in the review process for months. He said the Education Department would begin enforcing the directive Aug. 14, giving schools “an unusually long period of time” to comply and train employees on the changes.
Some who had advocated for a delay said Wednesday that time frame is still too tight.
Title IX rules go into effect in August. What does that mean for districts? In theory, districts should begin to start to update handbooks, re-do PD, etc. and find time/resources to do this DURING A PANDEMIC. Not a great time for substantive and unnecessary policy changes.
— Sasha Pudelski AASA (@SPudelski) May 6, 2020