The issue of Title IX laws and the Title IX offices in institutions across the country have been in the spotlight more than usual recently. Starting with the #MeToo and Times Up movements and now even more so since Betsy Devos, the current Secretary of Education, made alterations to the Title IX rules.
What is Title IX?
The basis of Title IX is to protect people from discrimination on the basis of sex in any educational programs or activities that receive Federal financial assistance. The Department of Education states that under Title IX, “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.”
Some of the obligations for recipients of Federal funding include zero discrimination in areas of:
What are the Changes to Title IX?
The changes that have been proposed to the Title IX rules are supposed to improve schools’ responses to sexual harassment and assault. The proposed rules are meant to ensure that schools respond meaningfully to every report of sexual harassment and that due process protections are in place for all students, including the accused perpetrators.
According to the U.S. Department of Education and the Office of Civil Rights, some of the key provisions from these changes include:
“The supportive measures designed to preserve or restore a student's access to the school's education program or activity, with or without a formal complaint. Supportive measures may include the following:
Academic course adjustments
Dorm room reassignments
Leaves of absence
Class schedule changes.”
“The proposed rule would require schools to apply basic due process protections for students, including a presumption of innocence throughout the grievance process; written notice of allegations and an equal opportunity to review all evidence collected; and the right to cross-examination, subject to "rape shield" protections.”
“Consistent with U.S. Supreme Court Title IX cases, the proposed rule defines sexual harassment as unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school's education program or activity.”
How These Changes Could Affect Students
The Definition of Sexual Harassment Has Been Narrowed
One of the most significant changes to Title IX under these new rules is that the definition of sexual harassment has been significantly narrowed. As we said above, in order for a case to be pursued the act must be “so severe, pervasive, and objectively offensive” that the victim is effectively unable to pursue or access the school’s education or activity programs.
This means that sexual misconduct can only be investigated or punished if they meet this new description. This new definition has not been received well with the perception being that most offenders will get away with much more than they were previously allowed, while most people were hoping these changes would lean more in favor of the victims.
The National Education Association wrote a 12-page letter to the Department of Education objecting to the proposed changes to Title IX for reasons including that this new definition of sexual harassment will require schools to ignore sexual harassment until it becomes “repeated and severe.”
More Rights Granted to Accused Sex Offenders
Additionally, the new rule allowing the accused to cross-examine their accuser, through an advocate, has been a significant point of contention. The previous Title IX draft prohibited cross-examination due to its potential to traumatize the accuser all over again.
Sexual assaults on campus are already staggeringly underreported by victims; estimates say that 90 percent of victims never come forward for fear of not being believed and fear of retaliation among other reasons. The new rule giving the accused the ability to cross-examine their accusers provide a powerful incentive for victims not to pursue the justice and peace of mind that they so rightly deserve.
Furthermore, following the recent proposals, the college's responsibility to investigate sexual crimes would be confined to incidences that happen on the campus or within an institution. This proposal has come under heavy criticism given that most students live off campus because it's cheaper, and this is where a majority of the sexual assaults in higher education occur.
Ultimately, the common perception of these new changes to Title IX is that it protects those being accused of sexual assault rather than the victims. According to the Department of Education, this is to restore the due-process rights to those who have been accused of sexual assault, even though research has shown that the percentage of false accusations is around 2 percent.
If you or a loved one has been the victim of sexual assault or sexual harassment on campus, we encourage you to come forward. You don’t need to fight this battle alone. At White Law, we will fight for you to get the justice you deserve and have been denied. By coming forward, you are helping ensure that others will not be subject to this kind of heinous abuse by showing that these crimes will not be tolerated. Contact us today for a case review, and we will begin the process of securing you the justice you rightfully deserve.