The Attack on Title IX

November 15, 2018
U.S. Secretary of Education Betsy DeVos speaking at the 2017 Conservative Political Action Conference (CPAC) in National Harbor, Maryland.

Credit: U.S. Secretary of Education Betsy DeVos. Gage Skidmore. (CC BY-SA 2.0)

Updated: December 11, 2018

The U.S. Department of Education is working to systematically dismantle Title IX protections. After rescinding critical guidance documents in September 2017, the Department of Education has now announced a plan to make sweeping changes to Title IX’s regulations, which would have significant implications for students’ civil rights and for federal enforcement of the law.

Background

Protect and Strengthen Title IX

We can’t let the Department of Education weaken Title IX. Add your name today to oppose the changes, and to learn more about how you can help fight back.

In September 2017, the Department of Education rescinded two important documents related to Title IX: the 2011 Dear Colleague Letter on Sexual Violence and a 2014 Q&A on Title IX and Sexual Violence, which had provided much-needed clarification about what Title IX requires schools to do to prevent and address sex discrimination in educational programs. Specifically, these documents gave critical guidance to schools about their legal obligations under Title IX to respond promptly and fairly to allegations of sexual assault, and set forth guidelines for how to handle these allegations.

At the same time it withdrew these documents, the Department of Education issued a new interim guidance on Title IX. These rollbacks paved the way for the current attempt to further erode the protections of Title IX, announced in the November 2018 Notice of Proposed Rulemaking (NPRM).

What Does This Mean for Women and Girls?

Make no mistake — the Department of Education’s actions amount to a blatant rollback of strong and necessary protections for students, and particularly for student survivors of sexual assault. Specifically, the November 2018 NPRM would weaken Title IX’s protections by narrowing the definition of sexual harassment to potentially exclude much of the abuse students experience and altering when schools will respond to reports of sexual harassment and violence. In addition, the rule would put in place school processes that make it harder for students to come forward and receive the support they need when they experience sexual harassment or assault. Title IX protects all students from discrimination — students of all genders, from kindergarten through college — and these expansive changes would put those protections at risk.

The changes proposed in the NPRM would:  

  • Exclude many students’ experiences by narrowing the definition of sexual harassment, in turn limiting whether schools respond to much of the abuse students experience. Students would be forced to put up with escalating levels of sexual harassment without being able to ask their schools for help. Many incidents of sexual harassment and violence would no longer “count” as severe and pervasive enough and schools would have to ignore these students. For many students, this may mean that by the time their school has to act they will have missed out on critical educational opportunities, if they were even able to stay in school.
  • Reduce which employees are required to respond to reports of sexual harassment and violence. This means that students will have to understand a confusing set of rules just to find the right person to tell to ensure that the school take action on their report. That’s because some officials won’t be required to do something after learning of sexual harassment or violence. This limits the ability of students to get the help they need, especially from someone they trust.
  • Require schools to ignore harassment that occurs outside of a school activity, including most off-campus and online harassment. Schools would only have to respond to sexual harassment and violence that occurs at the school or in a school program, instead of all sexual harassment and violence that impacts a student’s education. For students, this may mean having to see their harasser in class every day, or continuing to endure sexual harassment by other students outside classroom doors.
  • Allow schools to use processes that make it harder for students to come forward and receive the support they need when they experience sexual harassment or assault.
    Schools use a standard in their disciplinary proceedings to guide how to weigh all the information they gather related to an incident. Under the proposed rule, all schools would be allowed and, in certain situations, required, to use a less equitable standard, discouraging students from coming forward. Most schools have long used the preponderance of the evidence standard, which treats both sides equally and is consistent with Title IX’s requirement that grievance procedures be “equitable.” It is also the standard of proof used by federal courts in all civil rights cases, including all Title IX cases. Under the NPRM, institutions of higher education especially would be encouraged to use a hostile and confrontational hearing process designed to deter survivors from coming forward.

AAUW stands with survivors and we remain committed to protecting and defending Title IX, and to pursuing its vigorous enforcement. We must ensure our nation’s dedication to full and equal educational opportunities for all students. After all, students’ access to education is on the line.

Taking Action

From now through January 28, we have an opportunity to weigh in with the Department of Education on their proposed changes. It’s crucial that advocates speak up — loudly — and fight back against any attacks on Title IX that attempt to diminish students’ protections.

We can’t let the Department of Education weaken Title IX. Add your name today to oppose the changes, and to learn more about how you can help fight back.

 


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Deborah J. Vagins By:   |   November 15, 2018