The Proposed Title IX Rules Make No Practical, Moral, or Legal Sense

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Commentary Law and Policy

The Proposed Title IX Rules Make No Practical, Moral, or Legal Sense

Shiwali Patel

If a college student tells her professor that she has been sexually assaulted, the professor wouldn’t have to help her at all.

I was outraged, but not surprised, when I saw the Title IX rules recently proposed by the U.S. Department of Education (DOE) concerning how schools must respond to sexual harassment and assault. Until five months ago, I had been working at the agency’s Office for Civil Rights (OCR), including on these draft rules. I know what it’s like to work with political leaders and appointees with extreme biases—Secretary of Education Betsy DeVos among them.

While at the Department of Education, I was horrified to hear DeVos and other political appointees regularly sympathize with named sexual harassers and rapists rather than with survivors, while dismissing well-researched evidence that refuted their extreme ideological positions. They routinely ignored the advice of those of us with actual civil rights expertise and increasingly shut us out of important meetings. Although DeVos and Kenneth Marcus, the current DOE assistant secretary for civil rights, claim they are trying to fix Obama-era policies, a copy of previously unpublished documents obtained by the National Women’s Law Center reveal that Marcus was already trying to narrow the definition of sexual harassment, including making it harder for students to meet the standards of enforcement, as early as 2004—the last time he was head of OCR. (I now work at the National Women’s Law Center as senior counsel, where I’m advocating for students to be protected against sexual harassment and assault in schools.)

It’s no surprise, then, that the proposed rules fail to make any practical, moral, or legal sense.

Under the current Title IX guidance, a school must respond to sexual harassment when a student reports it to an employee, as long as the student reasonably believes that the employee has the authority to take action to address the harassment or has a duty to report it to appropriate school officials.

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By contrast, under these new proposed rules, Michigan State University would have had no responsibility to stop Larry Nassar from sexually abusing girls and young women, just because his victims told their coaches and athletic trainers instead of the Title IX coordinator. The proposed rules would allow the majority of school employees to ignore students who report sexual abuse because these employees lack “the authority to institute corrective measures.” So, if an 8-year-old child tells a playground supervisor that his teacher is inappropriately touching him, the playground supervisor wouldn’t be obligated to do anything. If a college student tells her professor that she has been sexually assaulted, the professor wouldn’t have to help her at all. Students may not know where they could turn for help.

It gets even worse. Under these rules, students would have to endure a level of sexual harassment that is already considered illegal for adults in the workplace. That’s because the proposed rules would change the current requirement that schools take prompt and effective steps reasonably calculated to end the harassment and prevent it from recurring. Instead, the rules would require schools to ignore all sexual harassment unless the student has already been denied equal access to education—even if the student has to sit next to their harasser or rapist in class every day. Students would be forced to wait until the behavior causes their education to suffer, like dropping grades or missing classes, before they could even file a complaint.

There’s more. Generation Z is online 24/7, yet if a middle school student tells her school that her classmates are sharing nude pictures of her on social media outside of school hours, her school would be forced to dismiss her complaint because the harassment didn’t occur during an education program or activity—even if she now suffers from depression and self-harm. Eighty-seven percent of college students live off campus, yet if a student tells her school that she was raped in off-campus housing, her school would be prohibited from investigating her report as a Title IX violation because it did not occur on campus—even if she now suffers post-traumatic stress each time she shares space with her rapist. Rapists’ attorneys could grill survivors at universities about the traumatizing and triggering details of their assault—even if those questions include whether the survivors enjoyed their assault.

Any one of these terrible changes would be enough to make it extraordinarily difficult for a survivor to learn and stay in school. Yet DeVos and Marcus are trying to impose all of them and more on students who experience sexual harassment or assault—a burden that would fall disproportionately on girls, women, LGBTQ students, students of color, pregnant and parenting students, and students with disabilities. These are exactly the types of discrimination that Title IX and other civil rights laws were created to prohibit. These proposed rules would effectively transform Title IX from a law that protects students into one that shields schools and perpetrators from accountability.

As a former educator at a rape crisis center, I’ve talked to hundreds of middle and high school students about sexual harassment and sexual assault—including far too many survivors who told me harrowing stories about their experiences. But DeVos has chosen to listen to the schools that have spent tens of thousands of dollars lobbying for looser regulations on sexual harassment and to the misogynistic ideology of fringe groups.

Thankfully, the fight is not over. Over the next 60 days, we have another chance to tell DeVos why her proposed rules are dangerous—by sending the DOE comments that it must consider before publishing its final rules.

Together, every single one of us must help ensure safe schools for all students.