The U.S. Department of Education (DOE) today released its long-awaited Title IX proposed regulation on how schools should handle sexual violence and harassment allegations made by students against other students, which advocates labeled “disgraceful.”
The rule replaces less formal Obama-era guidelines that gave broader protections for survivors of sexual harassment with an official rule that will carry the full force of law after an upcoming public comment period is completed. It narrows the criteria determining what constitutes sexual harassment and subsequently lowers the number of allegations a school must investigate under Title IX.
“The proposed regulation is grounded in core American principles of due process and the rule of law,” reads a summary of the rule released by DOE. “It seeks to produce more reliable outcomes, thereby encouraging more students to turn to their schools for support in the wake of sexual harassment and reducing the risk of improperly punishing students.”
The Obama-era guidance defined sexual harassment as “unwelcome conduct of a sexual nature.” Education Secretary Betsy DeVos’ proposed rule would define it as “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.”
Of issue for many educators and advocates is rule language allowing schools to escape DOE investigation by encouraging survivors to seek accommodations such as a change in class schedule or new housing, rather than a more formal school investigation.
“Survivors look to university administrators and government institutions to protect them, not to codify a system that sweeps their experiences under the rug,” Randi Weingarten, president of the American Federation for Teachers, said in a statement. “This rule abdicates the responsibility to protect every student’s right to safety on campus. It tells academic institutions that they needn’t bother helping to protect students; they won’t be liable.”
More than 3 million students will be sexually assaulted this year and less than 10 percent will report it to school officials. That number is likely to decline under the Trump administration’s regulation. More than a third of students who have been sexually assaulted drop out of school, indicating that sexual violence is a major factor in equal access to educational opportunities.
Some advocates said the rule follows an administration pattern reinforced by Senate Republicans: a total disregard for addressing sexual assault. “These new rules betray the same attitude about assault that we saw from Senate Republicans the last few weeks—disparage and diminish survivors and discourage them from reporting,” Jess Davidson, interim executive director of student survivor advocacy group End Rape on Campus, said in a statement. “DeVos is making plain with these unlawful rules that she is turning her back on survivors. The results of this rule are clear: Fewer will report their assaults and harassment. Schools will be more dangerous.”
Despite a formal process set out under existing law, the proposed regulation would ease the process for schools to obtain religious exemptions to Title IX rules. Schools today have to submit a formal written request in advance for religious accommodation by spelling out which regulations they were seeking exemption from and the religious basis for that request. The new rule would eliminate the written request model, potentially opening the door for religious schools to escape DOE sanctions for investigations already in progress.
Especially vulnerable under the new rules are transgender students, who experience higher rates of sexual harassment and violence than their peers. Eight in ten trans and gender nonconforming students in grades K-12 experience harassment, while more than one in three have been physically assaulted before the end of high school. With a larger administration push to eliminate the sex-based rights of transgender people, trans students could be left without any government protection from sexual violence and harassment.
“Transgender people know all too well the experience of having our stories put on trial, our experiences disbelieved, and our suffering ignored,” Mara Keisling, executive director of the National Center for Transgender Equality, said in a statement. “If adopted, this rule will put even more barriers between transgender survivors and justice. It would mean that many of the most vulnerable members of our community can be subjected to an unfair and skewed process when reporting their assaults, pushing many away from reporting at all and re-traumatizing them in their time of need.”
Democrats accused the administration of once again turning its back on sexual assault survivors.
“Over the past two years, the Trump administration has delivered one devastating blow after another to women and victims of sexual misconduct,” Elizabeth Renda, Democratic National Committee women’s media director, said in a statement. “While the Trump administration has shown us where their priorities lie, Democrats will not stop fighting to hold this administration accountable for its attacks on women and victims of sexual assault.”
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