In the latest attempt to ramp up pressure on the Biden administration to overhaul regulations on how schools deal with sexual misconduct, the advocacy group Know Your IX released a 37-page report Monday describing hardships students say they’ve experienced after filing Title IX complaints.
The report, based on testimonials from 107 students who reported sexual violence to their schools over the past decade, described students dropping out of college, feeling suicidal and facing threats of defamation lawsuits from the accused. Two students said their attackers hired a private investigator to track them, while two others described developing chronic nervous system disorders from the stress of their assaults and the school investigations.
Know Your IX’s report highlights what victims’ rights advocates see as urgent and long-standing problems with how sexual assault victims are treated on campuses. The group is calling on the Department of Education to reverse changes to Title IX rules spearheaded by former Education Secretary Betsy DeVos, which gave more protection to accused students. The group is also demanding that the Education Department provide resources to ease the physical and financial toll students face after a sexual assault.
"Student survivors need immediate action on Title IX. What seems like just a few months to nonstudents is an entire semester for a student," said Sage Carson, manager of Know Your IX. "Survivors can’t spend another semester, let alone another four years, with the current status of the Title IX regulation."
President Joe Biden’s pick for education secretary, Miguel Cardona, was just confirmed two weeks ago, and there’s already a growing clamor from victims’ advocates, civil rights groups and Democratic members of Congress demanding a quick overhaul of the Trump administration’s Title IX regulation.
The regulation, issued under the gender equity law Title IX, governs how schools taking federal funding must handle sexual misconduct cases involving the nation’s 56 million K-12 students and 20 million college students. The rules, which DeVos called a signature achievement of her tenure as education secretary, give accused students more avenues to defend themselves, restrict how a school can investigate sexual assault allegations, and limit schools to only investigating incidents that happen at school or as part of a school activity.
Last week, Biden signed an executive order directing Cardona to review the Title IX regulation and explore rewriting it. On the same day, a group of high school students from Berkeley, California, sued the federal government demanding a court wipe out several Title IX changes implemented by DeVos. And earlier this month, 115 members of Congress signed a letter to Cardona urging him to respond to lawsuits challenging the validity of the regulation by putting the rule on hold, and issue interim guidance while the government starts a new rulemaking process.
The Education Department has not said what it plans to do regarding Title IX, other than a top civil rights appointee writing last week that “Over time, we will create opportunities for all who are interested to share their views” on sexual harassment policies. Cardona tweeted in response to the executive order: “It is my responsibility to ensure that educational institutions provide appropriate support for students to ensure a safe learning environment for them to grow and thrive.”
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Any attempt to scale back the Trump administration’s changes is likely to face resistance from defenders of accused students who say the new rules — including the right to a hearing with cross-examination through a third party, the ability for students to see all the evidence compiled and the presumption of innocence at the outset of an investigation — are essential due process protections.
The Foundation for Individual Rights in Education, a civil liberties group that praised the Trump administration’s Title IX approach, isn’t ruling out suing the government to keep the existing regulation in place.
“We’ve had feedback from attorneys who do the work in those cases, that it is night and day different on campuses,” said Joe Cohn, the group’s legislative director. “These are reforms that were desperately needed across the country.”
"We’ve had feedback from attorneys who do the work in those cases, that it is night and day different on campuses."
Joe Cohn, Foundation for Individual Rights in Education
Know Your IX doesn’t oppose keeping certain aspects of the regulation, such as an impartial and “thoroughly trained” panel making decisions on whether a student violated a school’s sexual misconduct policy. The group also supports cross-examinations done through third parties.
But Know Your IX also says the Education Department needs to take steps to stop schools from punishing students who report sexual assault, that states should amend laws to prevent students from facing defamation suits for filing Title IX complaints, and that schools should start releasing data annually on outcomes of student disciplinary cases involving sexual misconduct — none of which were addressed by the Trump administration.
On a near universal basis, organizations representing K-12 and higher education schools opposed the rules DeVos put forward, arguing in statements to the government that they were overly prescriptive, forced schools to act like courts and were "detached from the realities” on campuses. Even former Liberty University President Jerry Falwell Jr., a steadfast ally of former President Donald Trump, called DeVos’ framework a “terribly misinformed and narrow view.”
Another criticism of the new rules is that they require schools to use a legal definition of sexual harassment that’s narrower than the one used in workplace cases — requiring the harassment to be “severe and pervasive” rather than “severe or pervasive.”
Experts say that narrower definition makes it more difficult for a school to take action when harassment of a student is ongoing, but doesn’t all come from the same person.
“If you’re a 15-year-old, and every week someone else says something gross about your body as you walk through the halls, you’re going to feel less safe in school even if there’s no one person responsible for the harassment,” said Alexandra Brodsky, an attorney with the nonprofit firm Public Justice, who is representing the Berkeley students.
In its lawsuit, the Women’s Student Union at Berkeley High School describes how students have faced harassment in Zoom “breakout rooms,” in group chats and on social media, including classmates who have circulated sexual images of students. Yet, the new regulation limits schools to investigating only sexual misconduct that is alleged to happen on campus or as part of a school activity. The students say this discourages them from reporting harassment to administrators when they’re unsure if it counts under Title IX.
“It’s next to impossible to even draw a line,” said Ava, 17, a junior at Berkeley High School, who asked that only her first name be used to protect her privacy. “It’s not about the location — it’s about the impact it has on you.”
"It’s not about the location — it’s about the impact it has on you."
Ava, junior at Berkeley High School
The regulation took effect in August, while many students, including those in Berkeley, were in remote learning. Some Berkeley students said that’s made it difficult to know where to make a complaint.
“Two of my teachers don’t know how to pronounce my name, and those are my two favorite teachers,” said Maize, 17, another Berkeley junior. “Given that, I wouldn’t feel comfortable reporting at all.”
Lawyers who advise schools on Title IX policies said the new regulation has become a particular problem in dating violence cases when students try to report concerns that a friend may be in an abusive relationship, but the friend doesn’t want to file a complaint. Research has found that most dating violence victims never report the abuse to authorities, often because they are embarrassed, unaware of their options or afraid of retaliation, but “the regs don’t take any of that into account,” said Scott Schneider, a partner at Husch Blackwell LLP, who works with universities on Title IX policies and investigations. He believes schools should be able to retain the option to open investigations even if the potential victim doesn’t want to file a formal complaint.
The rules also tie school administrators’ hands on what kind of evidence they can use, Schneider said. For instance, he said, colleges are supposed to disregard statements made by accused students or witnesses if they won’t attend a hearing and agree to be cross-examined.
“It just feels really weird that the only places that you have to walk through this kind of ridiculous and byzantine process are institutions of higher education,” he added.
Schneider described one case at a college in which an accused student admitted in a meeting with school officials that he abused a student, but because he refused to testify at the hearing, the regulation dictated that his confession should not be considered as evidence.
“That’s an insane result,” he said.