On May 6, 2020, the U.S. Department of Education’s Office for Civil Rights (OCR) issued new regulations regarding Title IX. These new regulations mandate how schools, including K-12, colleges, and universities, must investigate sexual misconduct cases under Title IX, a federal statute that prohibits discrimination on the basis of sex or gender in any federally funded education program or activity. These regulations do not align with trauma-informed sexual harassment and sexual assault investigations and procedures. As a certified rape crisis center (part of the Illinois Coalition Against Sexual Assault, or ICASA) and as a local Title IX partner at area universities and K-12 schools, we believe the new regulations are unacceptable. The new regulations are also in conflict with the Illinois Preventing Sexual Violence in Higher Education Act which are victim-centered and trauma-informed.
Despite more than a year since the Notice and Comment Process Period, during which more than 100,000 responses were sent to the U.S. Secretary of Education Betsy DeVos by Title IX and institutional leaders across the country, the Department of Education did not take survivor voices into consideration. The final rule will go into effect August 14, 2020, unless struck down; two lawsuits have already filed a lawsuit challenging the regulations.
About the Proposed Regulation Changes
Title IX states, “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.”
Proposed changes to the Title IX regulations mean schools will no longer have to investigate all reports and increase the likelihood of subjectivity:
- Schools only have to investigate “unwelcome conduct that is so severe, pervasive, and objectively offensive.”
- Instead of having to show a “preponderance of evidence,” as was the standard under the Obama administration, schools can now require “clear and convincing evidence” of the misconduct (more burden of proof from the survivor).
- Schools only have to investigate sexual misconduct that has taken place on-campus or, if off-campus, in the context of a school-sponsored activity, building, or event in which the institution has “substantial control.”
- Despite the advice of Title IX and institutional leaders across the country not to include live cross-examination in the investigation process, the new regulations include live cross-examination by a “representative” of each party’s choosing during college and university investigations, effectively turning the school into a courtroom.
As a result of these changes:
- People who have experienced sexual harassment or sexual assault in an academic setting will have a harder time demonstrating the occurrence of sexual misconduct.
- The proposed regulations are likely to have a chilling effect and make it less likely victims will come forward to report sexual misconduct.
- There will be a disproportionate impact on student survivors with marginalized identities, including LGBTQIA+ and non-binary students; students of color (especially Black, Latinx, and Indigenous women); male student survivors; undocumented and immigrant students; and students with disabilities. For example, more than half of LGBTQ students ages 13-21 are sexually harassed at school, and approximately 60 percent of black girls experience sexual abuse by age 18 (statistics cited by ICASA in their comment to the federal government).
Further, releasing new regulations in the middle of the COVID-19 pandemic crisis and expecting schools to enforce them by August 14, 2020, is unfair to both survivors and institutions.
You Are Not Alone
Sexual harassment and sexual assault are far too common in our nation’s schools. According to research from the Association of American Universities and the American Association of University Women, 56% of girls and 40% of boys in grades 7-12 are sexually harassed in any given school year. More than one in five women and nearly 1 in 18 men are sexually assaulted in college. As ICASA has stated, “When schools fail to provide effective responses, the impact of sexual harassment can be devastating.”
Pillars Community Health believes survivors, stands with survivors, and will continue to advocate for survivors. If you or someone you love could benefit from Sexual and Domestic Violence Services, click here to learn more about our services and please reach out for help:
- 24-Hour Sexual Assault Hotline: 708-482-9600
- 24-Hour Domestic Violence Hotline: 708-485-5254
For additional information about the proposed rule changes, visit ICASA online.