By Sue Davis
January 17, 2019

The U.S. Department of Education’s proposed revision of Title IX regulations contradicts the intent of those rules addressing sexual harassment, assault and abuse in K-12 schools and federally funded colleges and universities.

Instead of helping institutions deal forthrightly with such issues, the proposed changes help institutions avoid them and make it harder for survivors, predominantly of oppressed genders, to confront perpetrators, win justice and put an end to rape culture.

Of students, more than 1 in 5 women, nearly 1 in 4 transgender and gender-nonconforming people, and nearly 1 in 18 men are sexually assaulted annually. Women and girls of color, pregnant students, parents, LGBTQ or gender-nonconforming people are often ignored, punished or labeled “promiscuous.”

Two major DOE changes would make it harder to bring charges against an assailant. One raises the standard for a case from “preponderance of evidence” to “clear and convincing evidence.” The other upgrades harassment from “unwelcome conduct of a sexual nature” to “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person access to the [institution’s] education program or activity.”

Such definitions would help institutions dismiss all but the most blatant cases.

Institutions are only responsible for sexual abuse occurring within “school-sponsored activity”; all electronic communication is excluded. While students once reported abuse to a trusted teacher, only a Title IX coordinator with “the authority to institute corrective measures” or a K-12 teacher who has “actual knowledge” of abuse can help survivors. Institutions can now propose mediation, often used to resolve peer conflict, though that is never appropriate for sexual assault cases.

The most controversial aspect of the proposed regulations involves having sexual assault survivors be cross-examined by an advisor for the accused, with an advisor for the survivor likewise cross-examining the accused. While this was included to supposedly promote due process, it’s also where racist bias persists. Although the DOE’s Office of Civil Rights does not collect data on race in Title IX cases, analysis of cases at a private college where 4.2 percent of students were Black showed 50 percent of sexual-violation accusations were against Black students.

Can mere cross-examination eliminate racist bias, given the raging racism racheted up by the Trump administration? Not given the virulent, violent U.S. history of Black men lynched or imprisoned for sexual assault.

See National Women’s Law Center (nwlc.org) for more analysis.

Don’t let DOE Secretary Betsy DeVos get away with destroying Title IX. Public comments are accepted until Jan. 28; all submissions are said to be considered in the final revision. Post comments on regulations.gov under the title “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance” (listed on Nov. 29).

The NWLC provides two kinds of comments: A prewritten statement  (tinyurl.com/y9tmos4d) and a personal, customizable comment (tinyurl.com/y92v5szu). Submit before the Jan. 28 deadline!