In the latest attempt to increase pressure on the Biden administration to revise regulations on how schools deal with sexual misconduct, advocacy group Know Your IX released a 37-page report on Monday describing the difficulties students say have experienced after filing Title IX complaints.
The report, based on testimonials from 107 students who reported sexual violence in their schools in the past decade, described students who dropped 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 the development of chronic nervous system disorders due to the stress of their attacks and investigations at school.
The Know Your IX report highlights what defenders of victims’ rights see as urgent and longstanding problems about how victims of sexual assault are treated on campuses. The group is calling on the Department of Education to reverse the changes to Title IX rules led by former Education Secretary Betsy DeVos, which have given more protection to accused students. The group is also demanding that the Department of Education provide resources to alleviate the physical and financial suffering that students face after sexual assault.
“Surviving students need immediate action on Title IX. What seems like just a few months to non-students is an entire semester for a student,” said Sage Carson, manager at Know Your IX. “Survivors cannot spend another semester, let alone four more years, with the current status of the Title IX regulation.”
President Joe Biden’s choice of secretary of education, Miguel Cardona, was confirmed just two weeks ago, and there is already a growing outcry from victim advocates, civil rights groups and Democratic members of Congress demanding a quick review of the Title IX regulation of the Trump administration.
The regulation, issued under Title IX gender equality law, governs how schools that receive federal funding must deal with cases of sexual misconduct involving the 56 million K-12 students and 20 million college students. The rules, which DeVos called a landmark achievement in his term as secretary of education, give accused students more opportunities to defend themselves, restrict how a school can investigate allegations of sexual assault and limit schools to investigate only incidents that happen at school or as part of a school activity.
Last week, Biden signed an executive order instructing Cardona to revise the Title IX regulation and explore the possibility of rewriting it. On the same day, a group of high school students from Berkeley, California, sued the federal government demanding that a court eliminate 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 that question the validity of the regulation, putting the rule on hold, and issue provisional guidelines while the government starts a new regulatory process.
The Department of Education did not say what it plans to do in relation to Title IX, except for an important civil rights nominee who wrote last week that “In time, we will create opportunities for everyone interested in sharing their views” on sexual harassment policies. Cardona tweeted in response to the executive order: “It is my responsibility to ensure that educational institutions provide adequate support for students to ensure a safe learning environment for them to grow and prosper.”
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Any attempt to curb the changes in the Trump administration is likely to encounter resistance from defenders of accused students who say the new rules – including the right to a questioning hearing through third parties, the ability of students to see all the evidence compiled and the presumption of innocence at the beginning of an investigation – are essential protections of due process.
The Foundation for Individual Rights in Education, a civil liberties group that praised the Trump administration’s Title IX approach, does not rule out suing the government to keep existing regulations in place.
“We received feedback from the lawyers who do the work in these cases, that the day and night are different on campuses,” said Joe Cohn, the group’s legislative director. “These are reforms that were desperately needed across the country.”
“We get feedback from the lawyers who do the work in these cases, that it’s different day and night on campuses.”
Joe Cohn, Foundation for Individual Rights in Education
Know Your IX does not object to maintaining certain aspects of the regulation, such as an impartial and “fully trained” panel making decisions on whether a student has violated the school’s sexual misconduct policy. The group also supports cross-examination by third parties.
But Know Your IX also says that the Department of Education needs to take steps to prevent schools from punishing students who report sexual assault, that states must change laws to prevent students from facing defamation lawsuits to file Title IX complaints and that schools should begin to release data annually on the results of student disciplinary cases involving sexual misconduct – none of which has been dealt with by the Trump administration.
On an almost universal basis, organizations representing elementary and secondary schools opposed the rules presented by DeVos, arguing in statements to the government that they were overly prescriptive, forced schools to act as courts and were “disconnected from reality” in campuses Even former Liberty University president Jerry Falwell Jr., a constant ally of former President Donald Trump, called the DeVos structure a “terribly ill-informed and limited view”.
Another criticism of the new rules is that they require schools to use a more restrictive legal definition of sexual harassment than that used in employment cases – requiring harassment to be “severe and widespread” rather than “severe or widespread”.
Experts say a narrower definition makes it more difficult for a school to act when harassment of a student is underway, but not everything comes from the same person.
“If you are 15 years old and every week someone else says something disgusting about your body as you walk down the halls, you will feel less secure at school, even if there is no person responsible for the harassment,” said Alexandra Brodsky, a lawyer of Public Justice, a nonprofit company that is representing Berkeley students.
In its filing, the Women’s Student Union at Berkeley High School describes how students faced harassment in Zoom’s “break rooms”, in group chats and on social media, including classmates who posted sexual images of students. However, the new regulation limits schools to investigating only sexual misconduct that allegedly occurs on campus or as part of a school activity. Students say this discourages them from reporting harassment to administrators when they are unsure whether it counts in Title IX.
“It’s almost impossible to draw a line,” said Ava, 17, a sophomore at Berkeley High School, who asked that only her first name be used to protect her privacy. “It’s not about location – it’s about the impact it has on you.
“It’s not about location – it’s about the impact it has on you.”
Ava, junior at Berkeley High School
The regulation went into effect in August, while many students, including those from Berkeley, were in remote education. Some Berkeley students have said that this makes it difficult to know where to make a complaint.
“Two of my teachers don’t know how to pronounce my name, and these are my two favorite teachers,” said Maize, 17, another junior from Berkeley. “Considering that, I wouldn’t be comfortable reporting.”
Lawyers advising schools on Title IX policies said the new regulation has become a particular problem in cases of dating violence, when students try to report concerns that a friend may be in an abusive relationship, but the friend does not want to register a claim. The survey found that most victims of dating violence never report abuse to the authorities, often because they are embarrassed, unaware of their options or afraid of retaliation, but “regs don’t take any of this into account,” said Scott Schneider, a partner of Husch Blackwell LLP, who works with universities on Title IX policies and investigations. He believes that schools should be able to maintain the option of opening investigations, even if the potential victim does not want to file a formal complaint.
The rules also tie the hands of school administrators over the type of evidence they can use, said Schneider. For example, he said, colleges should disregard statements made by accused students or witnesses if they do not attend a hearing and agree to be questioned.
“It is very strange that the only places you have to go through this kind of ridiculous and Byzantine process are higher education institutions,” he added.
Schneider described a case at a college where an accused student admitted at 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 taken as evidence.
“It is an insane result,” he said.