In a letter sent last Friday, a group of Senators, led by Senator Patty Murray (D-WA), sent a letter to Education Secretary Betsy DeVos calling on the Department to engage in meaningful consultation with survivors before proposing new Title IX rules that could impact the rights of student survivors of sexual harassment and assault.

The letter–which was also signed by Senators Richard Blumenthal (D-CT), Kirsten Gillibrand (D-NY), Elizabeth Warren (D-MA), Cory Booker (D-NJ), and Maggie Hassan (D-NH)–came in response to news reports about the upcoming proposed rule and a subsequent leaked draft. According to the Senators, the draft regulations would not only dishonor the spirit of Title IX, they “would weaken the law, undermine fundamental protections for survivors of sexual assault, harassment, rape, or other forms of sex discrimination, and empower schools to ignore discriminatory, unlawful behavior against students.” Based on their review, the Senators write that they are “concerned that the rule does not reflect input from students and survivors whose voices deserve to be heard,” and ask that they Department not publish the proposed regulations “until it is clear that survivors’ voices have been fully considered and addressed.”

Of particular concern for the Senators are provisions of the rule that would limit the scope of protections for survivors. The draft rules would redefine “sexual harassment,” forcing survivors to endure conduct “so severe, pervasive, and objectively offensive that it denies a person access to the school’s education program or activity” before the school would be obligated to act. The new rules would also allow schools to ignore the thousands of sexual assaults that occur off-campus, and permit retaliation against survivors if schools determine that a complaint was made in “bad faith.” False reports of sexual assault are extremely rare, however, whereas survivors of sexual violence often do not report assault because they do not think they will be believed, an issue that was highlighted recently when the hashtag #WhyIDidntReport went viral after President Trump questioned Dr. Christine Blasey Ford’s account of being sexual assaulted by Brett Kavanaugh.

The Senators also noted that the new rules would more easily allow religious schools to discrimination on the basis of sex. Under the rules, religious institutions could “exempt itself from Title IX, even when under investigation by the Department,” essentially allowing schools to absolve themselves of responsibility after the fact.

The Trump Administration predicts that the new draft rules would save colleges and universities $19 million and school districts $54 million by decreasing the number of sexual misconduct investigations. Survivor advocates argue that the cost-benefit analysis fails to take into consideration the cost of sexual violence to individual survivors, their families, and the school community. Decreasing the number of investigations does not mean that sexual harassment and assault are not occurring, only that they may not be properly addressed. Survivor advocates, including the Feminist Majority Foundation have been clear that these draft regulations would make campuses, including K-12 schools, more dangerous by encouraging schools to sweep sexual violence under the rug. Failure to address sexual violence could also lead more college and high school students to drop out or transfer schools.

Last year, Secretary DeVos rescinded Obama-era Title IX guidance meant to protect survivors of sexual assault and reduce the sexual violence in schools, including on college and university campuses. The Department then issued new interim rules, despite overwhelming public support for the Obama-era guidance; when the DeVos Education Department solicited comments on whether the guidance should be rescinded, 95 percent of people who responded supported the Obama-era campus sexual assault and harassment guidance.

The Department of Education is poised to release its new proposed regulation on campus sexual harassment and assault in November. Once the proposed regulation is published, the public will have 60 days to comment on the proposal before a new regulation can be finalized.

Media Resources: New York Times 9/10/18, 8/29/18; Feminist Newswire 9/22/17; National Sexual Violence Resource Center

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