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What’s at Stake in a Review of Federal Sex Discrimination Protections for Students

By Evie Blad — June 04, 2021 10 min read
Image of gender symbols drawn in chalk.

A sweeping review of one of the nation’s key education civil rights laws that ramps up this week could lead to new policies on some of the most sensitive issues schools have faced in recent years: responding to reports of sexual assault and harassment, protecting LGBTQ students, and ensuring students are treated equally, regardless of gender.

Federal enforcement of Title IX of the Education Amendments of 1972 shifted dramatically between the last two presidential administrations. Schools have been left to navigate changes in complicated directives about their responsibilities to students, and a corresponding threat of federal enforcement if they don’t meet them.

School administrators are “sort of a little punch drunk in a way,” said Brett Sokolow, an attorney who consults on Title IX compliance and president of ATIXA, the Association of Title IX Administrators. “Movement in a pretty complex bureaucracy is pretty hard to achieve.”

Also caught in the middle: vulnerable students facing some very personal questions. What happens if a girl is sexually harassed off-campus by a classmate? How much evidence should it take to prove a claim of assault before a school is required to intervene? What assurances does a transgender boy have that the school will allow him to use the boys’ restroom?

“The process is so complicated,” said Isabella Pistaferri, an 18-year-old who just graduated from her Palo Alto, Calif., high school. Pistaferri said she didn’t even realize she was filing a Title IX complaint when she first reported that a male classmate had repeatedly harassed her and assaulted her in her sophomore year. She’s since learned more about the law and, with fellow students, campaigned for changes in how her school handles student reports.

“When someone is reporting something like this, it can be a difficult, emotional process,” said Pistaferri. “If it’s not handled correctly, it can retraumatize them.”

For K-12 students, that additional trauma may come through repeated intrusive questions, uncertainty about how quickly complaints will be investigated, or even interacting with alleged perpetrators in classrooms and school activities as the process plays out, she said.

All of those issues are expected to surface in five days of virtual public hearings by the U.S. Department of Education June 7-11, during which sexual assault survivors, groups concerned about due process for accused students, LGBTQ rights groups, educators, and others are expected to weigh in, voicing passionate and sometimes conflicting opinions about the law.

The department had collected 15,000 written comments by Friday, and it had a waitlist of more than 100 people after interested speakers exceeded 600 available spots, a spokesperson for the agency said. There is no set timeline for the agency’s review.

The swinging pendulum of Title IX enforcement

In one of her biggest policy moves, former U.S. Secretary of Education Betsy DeVos overturned Obama-era guidance on how schools, colleges, and universities should handle reports of sexual assault, replacing it with a more permanent rule that took controversial steps to protect the rights of the accused.

As one of her first official acts, DeVos also reversed a position held by President Barack Obama’s Education Department that the sex discrimination protections in Title IX applied more broadly to gender identity. She retracted nonbinding civil rights guidance that had directed schools to allow transgender students to use restrooms, locker rooms, and pronouns that matched their gender, and had set up legal showdowns with states and school districts that held conflicting views.

President Joe Biden has repeatedly pledged to swing the pendulum back toward the Obama-era approach. In a March 8 executive order on gender equality, he directed the Education Department to review all of its policies and regulations for enforcing Title IX.

“It is the policy of my Administration that all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity,” the order said.

If the Education Department decides to replace the DeVos-era rule, it could take a year or two before a new one is in place, Sokolow said.

Through civil rights guidance, the agency details how it will enforce existing federal laws, citing court precedents to show how they apply to specific situations. While the Obama administration used a nonbinding “Dear Colleague” letter for its guidance, DeVos went through a more time-consuming administrative review process, resulting in a rule that holds more legal weight and will be more difficult to reverse.

For the moment, the existing Title IX rule remains in place, acting Assistant Secretary for Civil Rights Suzanne Goldberg said in an April 8 letter to local and state education officials. But the Education Department plans to release a question-and-answer document to detail how its office for civil rights “interprets schools’ existing obligations under the 2020 amendments, including the areas in which schools have discretion in their procedures for responding to reports of sexual harassment,” the letter said.

That could allow some wiggle room, Sokolow said. There are also two lawsuits over the 2020 rule that are pending in federal courts.

Investigating complaints of sexual assault raises practical concerns for schools

Administrators in K-12 schools have been concerned that the DeVos-era regulations set up a process for investigating complaints that is so cumbersome and detailed that they cannot quickly respond to students’ concerns, Sokolow said. The rule details paperwork and notice requirements for all parties that sometimes threaten to drag the process out beyond states’ required time frames for how quickly schools should respond to complaints, he said.

“The school is paralyzed by a bureaucratic process with parents hounding them, saying, ‘When are you going to do something?’” Sokolow said.

Among the biggest changes in the DeVos rule:

  • It allowed 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 to prove claims of misconduct.
  • It defined 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.
  • It says schools will be found in violation of Title IX if they are “deliberately indifferent” to sexual harassment, a high bar for proving a school failed to protect a student. “It’s essentially a get-out-of-jail free pass, in some ways,” Sokolow said.

Advocates for students who survived sexual assault say the changes could allow schools to step off the gas in efforts to address sexual misconduct. That’s of particular concern at K-12 schools, which are widely viewed as having less-established practices for dealing with student complaints.

School administrators have complained that the processes outlined in the DeVos rule set up a “striking difference” between how they respond to complaints of sexual harassment and how they respond to any other student misbehavior, Sasha Pudelski, the advocacy director for AASA, the School Superintendents Association, said at a May 26 event held by the Democratic Women’s Caucus.

“School leaders are also concerned that it could cause a chilling effect that will make victims unwilling to report violations in the future,” she said.

But some groups have argued that the Obama-era directive was too ardent in its protections for complainants, threatening the due process rights of the accused.

The DeVos regulations “include critical procedural protections that will make the Title IX disciplinary process more equitable and more reliable,” said a statement from the Foundation for Individual Rights in Education, which supported the rule. “As an initial matter, the regulations require that students be given detailed notice of the allegations against them before they can be expected to answer those allegations — something that schools often try to avoid doing.”

A wonky policy process that affects vulnerable students

Pistaferri, the Palo Alto teen, said she hopes the department hears from students like her about how elements of federal policy affect their lived experiences in schools.

After she initially told a school counselor about her concerns with her male classmate her sophomore year, she said she didn’t see a resolution. Pistaferri re-upped her complaint her junior year, and she was overwhelmed by the process.

After hearing concerns from other students with similar experiences, she later helped found a Title IX club that attracted up to 80 students at its meetings. The group teamed up with teens from other schools to push their districts to review Title IX compliance and procedures in schools throughout their county.

Among the changes her high school made: holding discussions with students to make them aware of their rights, and detailing the investigations process in an infographic.

At the start of her senior year, Pistaferri learned about the changes in federal Title IX regulations. Among her biggest concerns: The rule said schools must respond to harassment that occurs “in the school’s education program or activity,” which includes “locations, events, or circumstances over which the school exercised substantial control over both the respondent and the context in which the sexual harassment occurs.”

Advocacy groups said that definition, changed between drafts of the rule, still left students vulnerable if harassment happened online or at a party with classmates. The subject of whether schools can discipline students for online speech is also the subject of a pending U.S. Supreme Court case.

Some of Pistaferri’s complaints involved off-campus behavior.

“If this had been in place when I was going through my investigation, I don’t think I would have reported,” she said of the rule. “It just seemed like a bunch of hurdles that would prevent people from being confident in the reporting process.”

How Title IX affects LGBTQ students

The Biden administration’s Title IX review may also lead to additional guidance on schools’ obligations to lesbian, gay, bisexual, and transgender students. That could set the stage for conflicting state and federal interpretations of the law. Legislators around the country, for example, have considered or passed new restrictions for transgender students in sports and in the classroom.

In a recent memo to federal agencies, the U.S. Department of Justice said Title IX protects students from discrimination on the basis of sexual orientation and gender identity. That memo cited a June 2020 decision by the U.S. Supreme Court in Bostock v. Clayton County, which held that an employer who fires a worker merely for being gay or transgender violates Title VII, a federal law that prohibits discrimination on the basis of sex in employment situations.

That decision adds to a list of legal precedents that have grown since the Obama administration first introduced its guidance on the rights of transgender students.

Biden made repeated assurances about the rights of LGBTQ students as a presidential candidate. He recently nominated Catherine Lhamon to serve as assistant secretary for civil rights at the Education Department. When she previously held that role in the Obama administration, Lhamon helped put the previous transgender-student guidance into place.

Groups that opposed that guidance have raised concerns about privacy rights for cisgender students in facilities like locker rooms, rights of expression for students with differing religious views about sex and gender, and fairness in women’s sports.

“If you care about preserving the federal statutory protections that bar the discriminatory treatment of women, and the bedrock understanding of male and female in our law and culture, then this should deeply concern you,” said a statement from Alliance Defending Freedom, a conservative legal group that has sued schools over transgender-inclusive policies, after Biden signed his executive order on LGBTQ rights.

In a written comment this week, a coalition of LGBTQ rights organizations pressed the Biden administration to revise Title IX regulations protections “on the basis of sex " to include “on the basis of sexual orientation, gender identity, transgender status, sex stereotypes, or sex characteristics (including intersex traits).”

They flagged concerns about unfair discipline practices, discriminatory school dress codes, unaddressed bullying or sexual harassment of LGBTQ students, and access to single-sex activities.

“All forms of discrimination are a serious problem that violate students’ rights under Title IX,” the comment said.

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