The Department of Education is a Protection Racket

New Title IX Rules Shift Burden to Survivors

Good Morning! This week’s piece addresses the significant changes to Title IX that were released last month. I know that some of you teach in universities and will be affected by these changes, so I would especially like to hear your reactions. But even if you are not in a school environment, this is an issue that affects all of our children from kindergarten through college. Let’s talk about it!

How did the Department of Education become a protection racket for college campus abusers? Let’s break it down from the beginning. On May 6, the Department of Education delivered new rules for the interpretation of Title IX, the federal civil rights law from 1972.  The original text reads:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

While this may seem like a straightforward statement, the rules around the interpretation of this law have been written and rewritten over the decades. In particular, the ability of college students to report their peers for sexual harassment or violence became a political football when the Obama administration delivered the “Dear Colleague” guidance for this topic. Conservatives claimed that the guidance letter made it difficult for someone accused to get a fair hearing. Upon Donald Trump’s appointment of Betsy DeVos as Secretary of Education, the Department Of Education (DOE) began taking comments on changing the rules. They delivered the 2033 page document in the middle of a pandemic and gave schools until August 14, 2020, to implement the changes. It is hard to imagine how colleges will make the necessary changes in time while simultaneously figuring out how to reopen and configure classes while managing student safety amidst COVID-19.

The new Title IX rules increase the burden for claimants to report and then defend accusations of sexual harassment and violence. This is a step backward. Survivors of sexual harassment and violence require a supportive system in which to have violators investigated. Instead, the onus is put squarely on the claimant’s back. The rules change the definition of sexual harassment, allow schools to apply a stricter standard of evidence, require cross-examination of both the accuser and the accused, and no longer allow complaints of events that happened outside of the “educational program.” All of these items put together add up to a situation where the greater burden is placed upon the complainant making it less likely that complaints will be reported at all.

The Power of And vs. Or

Within the new rules, the definition of sexual harassment is altered to the accused’s advantage. To be considered harassment, behavior now must be “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” This definition comes from a 1999 Supreme Court case Davis v. Monroe County Board of Education. The Supreme Court developed this definition to help identify when schools are liable for their “deliberate indifference” of sexual harassment. They changed the word “or” to “and”. This definition ensures that a claimant has to endure severe and objectively offensive harassment regularly to prove that it is in act pervasive. This is cruel. There is not a clear definition of “objectively offensive” so the school’s Title IX coordinator makes that decision. Let us look at an example. A male and female student both attend a lab as part of a science class. The male uses the close proximity of the lab to rub up against and touch the female’s rear end and torso near her breasts as he slides by to reach equipment. The female must not only tell him to stop, but she must also put up with this behavior repeatedly for it to be considered “pervasive”. Additionally, the Title IX officer has the power to decide whether the behavior is “objectively offensive” and “severe”. We cannot say for sure that all Title IX coordinators would agree that this situation warrants a claim. But for the student involved, the unpleasantness of the situation is likely to make her avoid the lab, thus affecting her education. Why should any student have to endure pervasive harassment before being able to make a complaint?

The Beast of Burden of Proof

The new rules also allow schools to institute a higher burden of proof when filing a claim. Prior to the new rules, the standard for complaints was a “preponderance of evidence” which in legal terms means that the evidence shows that there is a greater than 50% chance that the event happened. Now schools can either use that standard or choose to use a stricter one, “clear and convincing evidence”. This term means that there is a much greater than 50% chance that the event occurred. The clear and convincing standard is a higher burden of proof and is generally reserved for civil offenses that have special elements to establish. Common cases where the clear and convincing standard would be appropriate include: claims involving fraud, claims involving wills and inheritances, cases involving important family decisions such as withdrawing life support from a relative. Somehow, a school’s decision as to whether to listen to a student’s complaint about another student’s behavior does not seem to fall into a special elements category. By allowing schools to use a higher burden of proof, the DOE is making it harder for complainants to have their case heard at all.

The Automatic Opt-Out

The final choice that the new rules provide is for schools that are ruled by religious institutions. In the past, religious schools have had the option to be exempted from providing Title IX protections by writing a letter explaining the need for the exemption. Now the exemption is automatic. Additionally, the DOE will no longer provide a list of schools that are exempt from Title IX as they did previously. And most importantly, these schools do not have to notify students who apply for admission of their Title IX exemption. The result of this lack of notification could lead to students assuming that the school honors their civil rights and end up being expelled later for taking birth control, having premarital sex, or being gay. Fortunately, the group Campus Pride publishes a list of schools that are known for being hostile to LBGTQ+ students. In several cases in which students who attended religious institutions and filed a complaint of sexual harassment or violence, the school used the behavior listed in the complaint, like premarital sex, as an excuse for expelling the complainant rather than addressing the complaint. In religious institutions, allowing mediation (discussed later in this article) can lead to pressure on the complainant to forgive or pray for the perpetrator.

Schools should want to know if they have students who are terrorizing other students regardless of where the attack takes place.

Perry Mason at Your Service

Probably the biggest change to the rules is the process for adjudicating claims. The rules require complainants to participate in cross-examination of their claim. Both the complainant and the accused are allowed to have a representative cross-examine the other party. They each get to choose their representative. So, a complainant may be cross-examined by a parent, a fraternity brother, or a lawyer. This requirement is very likely to make many complainants reluctant to report sexual harassment or violence. This addition to the process is unnecessary and punitive. It requires the complainant to relive the event which is frequently traumatic in nature. The school’s duty is to investigate the claim and make a decision as a result of the information gathered. There is no reason for a school to require a complainant to submit to cross-examination. Cross-examination belongs in the criminal court, not in an educational institution where no one is properly trained.

Schools are also allowed to offer facilitation for other means of the informal settlement of complaints like restorative justice or mediation. Both parties must agree to this and there is typically no official disciplinary action as a result.  While this might seem like a good alternative, it ignores the power dynamic between survivors and the accused. While a complainant may desire a mediation for reasons of confidentiality, mediation and restorative justice practices typically put the complainant and respondent in the same room to discuss the issue. In situations where sexual assault has occurred, having to sit down and negotiate with the alleged assailant is retraumatizing and should not be offered as part of a complaint process.

The Room Where It Happens

The new rules require that all complaints must be based on events that happened during the “educational program or activities”. The harassment or violence must occur on campus or at a school approved program like an athletic team or a fraternity house or that is registered with the school. Given that a recent study at Texas A&M University shows that off-campus sexual assaults happen at 2 times the rate as on-campus assaults, and only 18% of students live on campus, the new rule leaves out the majority of cases. If harassers and abusers know that they are out of reach of the school because of the location, they are free to act with impunity. Schools should want to know if they have students who are terrorizing other students regardless of where the attack takes place. Just because a violation happens off-campus does not mean that it does not affect the victim in the classroom. If a student is harassed or attacked off-campus and then has to attend class or live in the dormitory with their attacker, that affects their educational experience. Finally, study abroad programs are not included at all. This is primarily because of the difficulty of enforcing international agreements between countries. The law was written in 1972, long before study abroad programs exploded in university settings. 

Taken as a whole, the effect of new rules of Title IX intimidates claimants and bolster protections for those accused of harassment and violence. Those who have experienced severe, pervasive, and objectively offensive sexual harassment or assault should not have to consent to cross-examination to file a complaint. The purpose of the Title IX complaint process is to secure the right of students to fair access to education. Universities are not court systems nor should they try to become one. Title IX coordinators are fully capable of investigating claims and making rulings without the intimidation tactic of cross-examination. Secretary Devos admits that the new rules were written to protect those accused and reduce claims. She also notes that colleges benefit since they will save over $19 million according to the DOE’S cost analysis. It is a cold and calculated mind that prioritizes the savings for schools over the safety of students to be educated free of harassment and violence.