By Mary Ellen Flannery
Any 19- or 20-year-old victim of rape can imagine what it would be like to be cross-examined, through an advocate, in a live hearing, by their rapist.
Painful. Traumatic. And avoidable—if they simply opt not to report their assault.
Sexual assaults on campuses already are under-reported by victims—an estimated 90 percent never come forward. The new federal Title IX rules, released in November by Education Secretary Betsy DeVos, which include a provision to enable cross-examination of victims as well as additional protections for accusers, is projected to lead to a 50 percent drop in future reports.
It’s this kind of chilling affect on victims—plus other changes that would make it more difficult for schools to investigate sexual harassment—that led more than 100,000 educators and advocates to contact federal education officials during the “public comment” period of rule-making.
Additionally, on January 30, in a detailed 12-page letter, NEA formally objected to the proposed Title IX amendments, telling DOE officials that the union “is deeply concerned about the potential impact its implementation would have on schools and on the learning environment for all students.”
Among NEA’s reasons are:
- The proposed, sharply narrowed definition of sexual harassment would require schools to ignore sexual harassment until it becomes “repeated and severe;”
- The new limitations would exclude off-campus conduct;
- The new “arduous” requirements for grievance procedures, including cross-examination of victims.”
“Secretary DeVos has fallen short yet again on a very simple and fundamental premise of her duty: to protect all students,” says NEA President Lily Eskelsen García. “This Trump-DeVos agenda would return schools to a time when rape, assault, and harassment were swept under the rug.”
What has changed in the new rules?
Title IX is a federal law, passed almost 50 years ago, that ensures women have equal access to education in schools and colleges that receive federal funds. Maybe best known for paving the way for millions of female athletes, the rules also make sure girls and women have equal access to course offerings and on-campus housing—and that they are safe from sexual harassment and assault in their K12 schools and college campuses.
Nearly one in four undergraduate women experience rape or sexual assault through physical force or violence.
“The real problem with these new rules is that they will make it much less likely that victims will report incidents of harassment or violence—and these incidents already are under-reported,” says Mark F. Smith, NEA higher education policy analyst.
The new rules, which were developed after DeVos met with men’s rights groups last year, may be revised based on public comments received in December and January, although advocates say it’s unlikely. They will replace rules that were put into place by the Obama administration in 2011, and revoked by DeVos more than a year ago.
There are significant differences between the old rules and the new DeVos rules, including:
- The new opportunity to cross-examine accusers stands out for its likely chilling effect on victims. “College students will have an understanding of what this adversarial process will be like,” says NEA attorney Keira McNett—and it’s not the “trauma-informed” practice that NEA would like to see. Additionally, low-income victims may be especially discouraged. “There’s this huge asymmetry between male responding parties who can afford lawyers and female reporting parties who can’t,” Brett Sokolow, president of the Association of Title IX Administrators, told Inside Higher Ed. “For a lot of those victims—male, female or otherwise identified individuals—who know they can’t afford good legal advice going in, if the other side has high-paid lawyers, I think it’s going to create a powerful incentive to not persist.”
- The old rules advised colleges to use a “preponderance of evidence” standard, meaning allegations would be proven when colleges find that it’s more likely than not that harassment or abuse occurred. The new rules aim to protect the accused with a higher standard—specifically, colleges must find “clear and convincing evidence.” This likely will lead to mini-trials that schools and colleges, especially smaller ones, aren’t equipped to handle.
- New language says institutions would be responsible for investigating abuse that occurs within college-sanctioned programs only. But many sexual assaults—including the Brock Turner rape at Stanford, or the alleged rape of a student by a Dartmouth professor—occur off-campus. Indeed, the department’s proposed rule notes that 41 percent of college sexual assaults occur off-campus. These incidents are no less traumatic than rapes that occur on campus.
- A less publicized change concerns private, religious schools or colleges that take federal funds, and consequently must comply with Title IX. Previously, if those schools wanted to claim a religious exemption for any practice that runs counter to Title IX, they would have to write a letter to the Department of Education (DOE) seeking the exemption and explaining the religious tenet. Under the new rule, schools would no longer have to write a letter—schools “can de facto claim the exemption without any oversight by DOE,” explains NEA attorney Gypsy Moore. This could make it much easier for an institution to dismiss or discriminate against LGTBQ students or even pregnant students.
Bottom line, these changes won’t help students, says Eskelsen García. “If adopted, the rules will mean fewer students report their assaults and harassment, schools will be more dangerous, and more students will be denied their legal right to equal access to education after experiencing assault and harassment,” says Eskelsen García. “Educators across the country are appalled. The proposed rules conflict not just with Title IX’s purpose but also with the basic values of equality, safety, and respect that we teach our students every day.”
You can help! Check out NEA EdJustice resources on sexual harassment and discrimination, including a model school board sexual harassment policy and answers to commonly asked questions.