The U.S. Department of Education, led by Secretary Betsy DeVos, has published new Title IX regulations for public notice and comment. The administration describes this process as “historic” and says it is for “the first time treating the problem of sexual harassment with the gravity it deserves.”
These proposed regulations send the wrong message to students and university communities and may discourage victims of sexual harassment and assault from speaking up.
Title IX is a federal law enacted in 1972 to protect citizens from discrimination based on sex/gender that deprives them of the benefits of their educational experience. The Supreme Court has interpreted this to include sexual harassment and assault. Title IX protects not only students on campus, but school employees, contractors, visitors and others. The proposed regulations focus on how schools handle complaints involving students.
Until now, the Department of Education's Office of Civil Rights has governed Title IX processes and procedures through official guidance, and enforcement through complaints and investigations. OCR official guidance is not formal law, but schools have treated it as law for years, complying with it as a best practice in service of students.
Why? Because OCR guidance has teeth. OCR complaints can result in lengthy and costly public investigations. The guidance system also allows for changes in approach in light of cultural changes affecting all schools.
The regulations proposed by the Trump administration are largely consistent with what schools are currently obligated to do under existing guidance, with three significant exceptions.
First, the definition of sexual harassment would be narrowed to include only “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 recipient's education program or activity.” Currently sexual harassment is defined as “unwelcome conduct of a sexual nature.”
Second, colleges and universities, not K-12 schools, would be obligated only to respond to conduct that “occurred within the school's own educational program or activity.”
Third, the most shocking proposed regulation requires that “cross-examination must be allowed (with rape shield protections against asking about a complainant's sexual history) and must be conducted by each party's adviser (i.e., no personal confrontation allowed).” The parties' advisers may be attorneys.
These three significant changes are inconsistent with the Department of Education's stated goals for Title IX.
In the background statement about the proposed regulations, the department states, “Every student has the right to attend school without fear of sexual harassment or assault. Every student has the right to attend school without fear of being determined responsible for sexual harassment or assault without due process protections.”
Currently, schools are responsible for sexual harassment and assault that occurs within the school's own property, educational programming, and activities, as well as harassment and assault that might occur outside the educational program, such as an off-campus party, that might affect the climate on campus.
Under the proposal, schools operating with a students-first approach and with ample resources may continue addressing incidents that occur off campus or not within campus programs and events. Without a mandate to do so, however, many schools will not do so, and their students will suffer. This change sends the message that if you are raped at a house party off campus, then the university cannot, or worse won't, help you.
The proposal's narrowing of the definition of sexual harassment to include only acts that are “severe, pervasive, and objectively offensive” significantly changes schools' obligations and potentially decreases schools' motivation to students affected by harmful harassment that may not be overt. Further, this change sends the message that unless the behavior is overtly reprehensible, the school does not have to address it.
This definition requires 18- to 22-year-olds to guess whether what happened to them is bad enough to tell someone. The likely result is that students will be less inclined to report incidents of harassment and assault, both of which are already underreported.
The National Sexual Violence Resource Center reports that more than 90 percent of sexual assault victims on college campuses do not report the assault, based on a 2000 study. A 2015 study by the American Association of Colleges and Universities showed that 89 percent of colleges and universities reported no rapes for that year. Not one. Yet the Rape, Abuse & Incest National Network says that “11.2 percent of all students experience rape or sexual assault through physical force, violence or incapacitation (among all graduate and undergraduate students).”
What this data indicate is that most assaults go unreported. While the list of reasons for low reporting is long and varied, one reason that is often discussed is the victim's fear of not being believed and/or facing the accused.
And yet the Trump administration's proposed regulations demand that schools permit the complaining and responding parties to cross-examine one another through representatives. This change sends the message that victims are open to confrontational questioning in a non-legal hearing.
Currently, hearings are often conducted in a manner in which the parties do not have to interact in any way, including limiting an advisor's ability to question directly the parties or the hearing panel. As a result, victims often choose to pursue a university Title IX process rather than go to law enforcement.
Further, allowing attorneys to conduct cross-examinations in non-legal disciplinary hearings creates a host of problems that the administration has yet to address. How will students who cannot afford attorneys be supported? Is the school responsible for ensuring that both students have licensed attorneys to represent them? Who pays? How will the non-lawyer chair of a hearing panel be trained and expected to hold an attorney accountable for appropriate behavior within the hearing where rules of evidence do not apply?
This change sends the message that university hearings are now pseudo courtrooms where the advantage lies with those who can afford to hire an attorney.
These proposed regulations do not appear to be “treating the problem of sexual harassment with the gravity it deserves,” as the Department of Education asserts. Rather, they send a message to victims of sexual harassment and assault that reporting such incidents will become increasingly difficult.
Whitney Bandemer is vice president for human resources and strategic initiatives at Manchester University. Opinions expressed are her own. A licensed attorney in Virginia and Tennessee, she has served as Title IX coordinator and is currently the interim Title IX coordinator at the university.
Jan. 28 is the deadline to submit comments on proposed changes to federal Title IX regulations regarding sexual harassment. For more information, go to https://on.jg.net/2FdLH7o.