Trial News

After an almost year-and-a-half wait, the Department of Education (ED) has finalized rules on sex-based discrimination in education programs under Title IX of the Education Amendments Act. The new rules, which become effective Aug. 14, purportedly ensure students “are safe to learn and achieve without facing sexual harassment and sexual assault.” However, many allege that the rules’ revamped grievance process and narrowed definition of sexual harassment will reduce protections for students who come forward. (Dep’t of Educ., Off. for Civ. Rts., Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 35 C.F.R. Part 106 (May 19, 2020).)

ED received over 124,000 comments on the November 2018 proposed rules, with many commenters, including AAJ, opposing provisions they said would increase hurdles for sexual harassment and assault survivors and reduce accountability for educational institutions. The final rules ignore many of these pleas.

Instead, the final rules allow schools to increase evidentiary standards accusers must meet: Schools may now choose between the current “preponderance of the evidence” standard or a more stringent “clear and convincing” standard as a burden of proof. Schools must select one standard and apply it to all formal complaints, whether against a student or an employee. But Public Justice attorney Alexandra Brodsky, of Washington, D.C., noted that “many schools will have no choice at all because of collective bargaining agreements with staff that require clear and convincing evidence for dismissal, which they may struggle to renegotiate before August.” And in its comments, AAJ argued that “[s]chools that switch to the higher standard will deter survivors from coming forward. This deterrence factor . . . would lead to inconsistent results and make it less likely that those who commit sexual misconduct will be held accountable. Since courts are often deferential to college disciplinary decisions, this may cause a survivor to be denied justice in their pursuit of any civil claim.”

The rules also require postsecondary institutions to establish a grievance process that includes a live hearing and cross-examination of the accuser, ignoring commenters that argued this could prevent assault survivors from coming forward. Decision-makers at postsecondary institutions may not rely on the statement of a party who does not submit to cross-examination during a live hearing. Elementary and secondary schools may, but are not required to, conduct a live hearing in their grievance processes. They are required, however, to afford parties the opportunity to submit written questions they’d like asked of the opposing party and to allow for follow-up questions.

In addition, the rules narrow the definition of sexual harassment subject to Title IX protections, requiring conduct to not only be “unwelcome” but also so “severe, pervasive, and objectively offensive” as to deny accusers equal access to education. AAJ strongly opposed this language in its comments, arguing that requiring a showing of pervasiveness would improperly force decision-makers to consider the frequency of the conduct. This “inappropriately send[s] the message that a single act of sexual harassment is just not morally bad enough to rise to the level of discrimination under Title IX,” AAJ said in its comments.

The locations for which Title IX protections are applicable are also narrowed under the new rules: Colleges are not obligated to respond to complaints of sexual assault or harassment when the alleged action took place at certain off-campus locations or during a study-abroad program. While schools must respond to complaints of abuse occurring at locations in use by “officially recognized student organizations” or “through use of cell phones or the internet if sexual harassment occurred in the recipient’s education program or activity,” they are absolved under the new rules from addressing school-related abuse that commonly occurs outside of the classroom and much of online abuse.

The first lawsuit challenging the rules was filed May 14 on behalf of Know Your IX, the Council of Parent Attorneys and Advocates, Girls for Gender Equity, and Stop Sexual Assault in Schools. In that suit, plaintiffs allege the rules impermissibly narrow the definition of sexual harassment, allow the use of a higher standard of proof than is required in other harassment proceedings, and direct schools to ignore reports of harassment and assault that occur off-campus and abroad.

Ashley C. Sawyer, policy director at Girls for Gender Equity, called the rules “a blatant threat to the years of work to create safe, supportive academic environments for students across the gender spectrum.” She added, “we want to do everything we can to ensure that the true spirit and original intent of Title IX remains, to ensure that everyone has meaningful access to education, without being hindered by sexual violence.”

San Diego attorney Jessica Pride, who handles sexual assault cases, said that “regulations should be judged by their sum result, and these new sexual assault regulations will have a chilling effect on survivors coming forward. Not only has Secretary [Betsy] DeVos left a historically vulnerable sector of our young men and women—student athletes—more vulnerable, but she has also turned back the hands of time for the rights of all student sexual assault victims.” Pride added that “the regulations represent a return to victim blaming, shaming, and intimidation” and a turn away from “the progress and record-breaking number of survivors finding justice under the prior regulations.”

 “At a time when our country yearns for meaningful action, Secretary DeVos and the Trump administration have decided to reinterpret Title IX to permit and even promote sex discrimination, all at the expense of students the law was designed to help, ” said Brodsky. She added that the new regulations are “rooted in outdated, sexist myths that turn back the clock and tie the hands of students who experience sexual harassment. Among many radical and unjust provisions, the rules require schools to single out sexual harassment and assault reports for unique skepticism and separate, onerous procedures, making it harder for survivors to come forward and access the support they need. Under these new rules, students who experience sexual harassment will face unjust obstacles to an equal education—obstacles that do not stand in the way of classmates who face comparable harms, like other forms of harassment and physical violence. The rules are a startling attempt to wipe away accountability for schools and reimagine a law that forbids sex discrimination to require such discrimination instead.”

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