'These Rules Turn Title IX On Its Head': Why Advocates Say New Regulations Will Chill Reporting

Jul 29, 2020

In May, the Department of Education made sweeping changes to Title IX regulations.

The new regulations change the definition of what qualifies as sexual harassment under Title IX. To meet the new standard, harassment must be “severe, pervasive and objectively offensive.”

Shiwali Patel is the director of justice for student survivors at the National Women’s Law Center.

“These rules, kind of in total, really just turn Title IX on its head as a civil rights law,” said Patel.

She said they raise the threshold of what schools can choose to ignore. It’s a departure from the guidance that’s been in place for around 20 years.

If a student isn’t being outright denied equal access to a program or activity, that might not be enough to warrant a Title IX case.

“That means some students would be forced to endure repeated and escalating levels of abuse before they can get help,” she said.

The new rules also require institutions of higher learning to dismiss reports of harassment that happen off-campus. So now they have to put separate sexual misconduct policies in place to apply to those situations.

This has ramifications for online harassment too, especially as many schools move to more virtual instruction during the pandemic.

Faith Ferber is a student engagement organizer with Know Your IX. She says if someone’s harassing you in a class Zoom meeting, that would be covered.

“But, if someone is sexually harassing you over Facebook and then you have to see them in the Zoom classroom, that wouldn't necessarily be covered,” said Ferber.

At Northern Illinois University, Title IX coordinator Sarah Garner said they do have procedures to help students.

“We have the opportunity to say, 'OK, even though it doesn't reach this level of conduct, how are we still going to address it as a university,'” said Garner.

But, as Faith Ferber said, the problem is that places like NIU could choose to ignore those cases. And she says the education department isn’t there to protect students either.

“We can't count on our schools and we can't count on the government. So, all we can count on is students and student power to really make a difference and hold our schools accountable,” she said.

At NIU, students held protests last year on the basis that the university was apathetic, mishandling investigations and that the process was slow.

The university hired another coordinator and Garner said they’re much better equipped to handle their caseload now.

Ferber works with students to put pressure on their universities when rights are being violated. Know Your IX has been online organizing to raise awareness about the new changes.

The new regulations are over 2,000 pages -- 2,033 to be exact. The policies themselves fit into the last 30 pages or so.

The reason the document is so long is so that the Department of Education, headed by Betsy DeVos, is trying to justify why the changes are needed and respond to public comments.

Shiwali Patel said there were more than 100,000 comments, mostly opposing the new rules.

“There were school principals, there were mental health experts, over 900 trauma specialists joined a letter and raised concern about the rule,” said Patel. “So, there was significant opposition, and yet they continued to move forward.”

Sarah Garner and NIU were one of many schools that sent in comments.

“Unfortunately, not many of our concerns made it into the final regulation,” said Garner.

Patel says the provisions were largely unchanged from what was proposed. But, there were also a few changes that weren’t even in the proposed rules, so they didn’t have a chance to comment.

One example is that colleges and universities are now barred from dealing with complaints by people who aren’t actively participating in an education program.

“So, that means a school won't be allowed to investigate a complaint of sexual harassment if the survivor already graduated or they transferred or let's say they dropped out of school because they were sexually assaulted, and they don't plan to re-enroll,” said Patel.

And colleges could dismiss cases when the respondent, who is being accused, isn’t enrolled or employed by the school. Patel said that could include a professor who retires or resigns after abuse comes to light.

Another change that wasn’t included originally reiterates that the Education Department’s guidelines supersede any state law.

And some new Title IX changes conflict with Illinois state law. One forces those going through an investigation to undergo cross-examination in a live hearing.

As Sarah Garner said, “We have a state law that says you cannot cross-examine one another. This is the Illinois Preventing Sexual Violence In Higher Education Act. However, now the federal regulations say you must cross-examine each other.”

In NIU’s public comment, it stated that this could “turn educational centers into courts of law” and allow for parties to be subjected to “demeaning, inappropriate and irrelevant probing.”

They’re waiting for Illinois Attorney General Kwame Raoul to weigh in. He, along with 17 other attorneys general, is currently suing the Education Department to block the final rules from going into effect.

Garner said they’ll find out if they must proceed with the guidance on August 14.

There are countless other issues advocates say make the process more difficult for the people involved and for the school conducting the investigation.

Patel said there’s now a broad exclusion of hearsay evidence. That includes disregarding evidence from someone who refuses to testify at a live hearing.

“If an assailant admits what they did in a guilty plea in a separate process outside the school before a judge or maybe they admit what they did in a text message or an email to the complainant or witness if that respondent isn't going to be cross-examined, the school has to ignore that confession,” she said.

Sarah Garner said where, previously, an investigator familiar with the case would make a final determination, that’s no longer allowed. It can’t be a Title IX coordinator either.

“That decision has to be made by someone who has not been involved in the investigation that is very neutral,” said Garner.

But, wouldn’t you want someone familiar with the case to make a decision like that? Garner said, “One would argue, right?”

If the rules are upheld, many advocates are concerned that COVID-19 could exacerbate problems.

Faith Ferber at Know Your IX said that the more schools lose money, the more likely it is that they’ll make cuts to Title IX and victims’ rights offices.

“We're hearing from so many students that their schools have ghosted them and have just stopped responding because they don't know what they're doing,” she said.

Ferber and other Title IX advocates said they know how long and arduous a process it can be for those who experience sexual harassment or violence to get justice. And, Ferber said, these new rules make it feel like the Education Department just doesn’t care.