Education Secretary Betsy DeVos has proposed harmful new regulations that would make it easier for schools to ignore student survivors of sexual violence and sweep allegations of sexual harassment and assault under the rug. Already, 1 in 5 women and 1 in 16 men will be sexually assaulted in college, and around 1 in 4 transgender, genderqueer, gender non-conforming or questioning students experience sexual violence as an undergraduate.
In the face of these sobering statistics, the Education Department turned its back on students and instead published proposed rules designed to protect education institutions’ bottom lines at the expense of survivors. By discouraging survivors from coming forward, these rules will save schools hundreds of millions of dollars while denying survivors their legal right to equal access to education and making schools less safe for everyone.
These new proposed rules come after DeVos rescinded overwhelmingly popular Obama-era Title IX guidance meant to protect student survivors of sexual assault and reduce sexual violence in schools. At every turn, the DeVos Education Department has been consistently hostile to survivors and instead has embraced so-called men’s rights activists and the university administrators, fraternities and athletic clubs that have promoted misogyny, gender stereotypes, and rape myths.
Now is the time to speak out. The Department of Education is asking the public to comment on its proposed regulations before they take effect. Use our comment guide to submit a comment now.
HOW THE PROPOSED REGULATIONS IMPACT YOUR RIGHTS:
1. The proposed regulation would narrow the definition of sexual harassment.
The proposed regulation would define sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that is denies a person access to the school’s education program or activity.” That means that a survivor would be forced to endure repeated and escalating levels of abuse before a school would be legally required to act. It also means that a school would potentially not be responsible for intervening until it’s too late—until the survivor is already denied equal access to an education by, for example, being forced to drop out of a class or drop out of school altogether.
Shockingly, by narrowing the definition of “sexual harassment” with respect to Title IX, DeVos would be making it more difficult for students in schools, including K-12 schools, to be protected from sexual harassment than adults in the workplace. The job of the Department of Education is to protect the civil rights of students, including the right of survivors to access education, not to help shield schools from accountability. The proposed rules, however, send the message that students should be forced to put up with sexual violence and that some level of sexual harassment is acceptable.
2. Schools would be allowed to ignore assault and harassment that occurs off-campus.
Under the new rules, schools would be required to investigate and respond to only a fraction of the thousands of off-campus sexual assaults that happen each year, even if the survivor sees their rapist every day in class, in the dining hall, in the dorms, or anywhere else on-campus. 41% of all campus sexual assaults occur off-campus, and the majority of college students live off-campus. Schools may also be able to ignore some online harassment, even if that harassment makes a student too afraid to go to school.
3. The proposed regulation would limit the ability of survivors to get help.
Under the proposed rule, schools would only be required to respond to complaints made to a limited number of employees with the “authority to institute corrective measures.” Schools would have no obligation to act even when students report to a TA or an RA. The rule also hurts K-12 students. Instead of being able to rely on a trusted teacher aide, cafeteria worker, or playground supervisor, a child would have to report harassment or assault to a principal or district superintendent before the school would be legally obligated to respond.
4. Survivors will be forced to submit to cross-examination, or else.
The new proposed rules require schools to force survivors to submit to cross-examination by an adversarial party aligned with the survivor’s named harasser or rapist. If a survivor is too traumatized to be cross-examined, too bad: the proposed rules would prohibit the school from relying on any of the survivor’s statements to reach a conclusion regarding the names harasser or rapist’s responsibility.
5. The proposed regulation denies survivors a fair process.
Schools would be allowed to use a standard of proof that tips the scales in favor of named harassers and rapists and against survivors. Shockingly, the proposed rule allows schools to single out sexual harassment and assault complaints for different treatment, not to protect survivors from being re-traumatized, but to protect alleged perpetrators from “stigma.” False reporting, however, is extremely rare, and survivors deserve a fair process that does not give deference, a higher benefit of the doubt, or special rights to those who may have caused them long-lasting, traumatic harm.
6. Schools could delay investigation indefinitely.
If a survivor reports an assault to both their school and the police, the proposed rule would allow the school to delay its investigation, perhaps indefinitely. Title IX, however, imposes an independent civil rights obligation on schools. The criminal justice system operates under an entirely different set of laws and with different considerations. Survivors shouldn’t be forced out of school because the administration won’t take action while a criminal complaint is pending, which can take years.
7. The proposed rule invites abuse of religious exemptions to Title IX.
Under the proposed rules, schools would be able to claim a “religious exemption” from Title IX, a civil rights statute, at any time. Even if a school has never indicated that it qualifies for a religious exemption, it can—once it is under investigation for violating Title IX—claim that it has no obligation to follow the law. This, obviously, does not give students notice of their schools intent not to protect their civil rights under Title IX, and is particularly harmful to women, LGBTQ students, and married or unmarried pregnant and parenting students.
