New Campus Sexual Assault Rule Only Pretends to Protect Students

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Analysis Law and Policy

New Campus Sexual Assault Rule Only Pretends to Protect Students

Naina Agrawal-Hardin & Jemie Fofanah

Betsy DeVos is creating a system that will leave student survivors without recourse and make campuses less safe.

In a few days, Betsy DeVos’ new rule governing Title IX—a federal civil rights law that requires schools to respond to sexual misconduct against students—will go into effect.

With the rule’s release, the U.S. Department of Education (DOE) and DeVos, the department’s secretary, have attempted to position themselves as allies to survivors. They celebrate in their press release that the new rule explicitly defines intimate partner violence (IPV)—stalking, domestic violence, and dating violence—as a form of violence schools must remedy.

But the rule is far from a lifeline to survivors of intimate partner violence. Instead, it makes monumental changes that will take the teeth out of Title IX and let schools off the hook for failing to respond to IPV in their communities.

Although the new Title IX rule recognizes IPV, it narrows the types of violence schools must recognize and respond to, creating a system that will leave student survivors without recourse and make campuses less safe.

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Students across the country have long faced the grim reality that it’s hard to learn when sharing a classroom with your abuser. One in five high school girls report experiencing physical or sexual violence from an intimate partner, and nearly half of college women face abuse at the hands of a partner. LGBTQ students face even higher rates. Student survivors are more likely to experience PTSD, difficulty sleeping, anxiety, and depression.

As a result, survivors are frequently robbed not only of their education but also, sometimes, of their lives. In fact, 50 percent of youth who experienced dating violence and rape also report attempting suicide. Still others are ultimately murdered by their partners—even after turning to their schools for help. After years of student advocacy, schools were finally starting to address IPV cases.

But now, DeVos is rolling back the clock. Through the new rule, she is putting survivors of IPV at elevated risk, all while pretending to be their fiercest advocate.

Under the DOE’s new rule, schools are barred from responding to almost all complaints of off-campus violence. Yet 87 percent of college students and nearly all K-12 students live off-campus, and most students spend much of their lives outside the bounds of their schools. This poses a unique threat to victims of IPV because the most violent acts between intimate partners are often committed in private, such as in off-campus housing or at off-campus events. DeVos and the DOE can’t claim to care about survivors of IPV while creating safe havens for abusers and leaving victims without recourse. Abuse that happens off-campus is still abuse. No matter where violence occurs, it still compromises survivors’ educational access and physical safety.

The DOE’s dismissal of off-campus violence is made worse by an extremely narrow definition of what kind of on-campus harassment even merits a response from schools. The new rule would require schools to respond only to violence that is “so severe, pervasive, and objectively offensive that it denies a person equal access to education”—a higher standard than is required for complaints of harassment based on race, national origin, or disability. Reports of intimate partner violence will not be required to meet that narrow standard. But because schools often miscategorize incidents of on-campus IPV as harassment, students experiencing violence that fails to meet DeVos’s extreme standard could be turned away by their schools when they seek help because their cases aren’t yet “bad enough,” or because the violence that was “bad enough” happened outside of school.

“Dating violence often gets lost in the harassment issues, and there are issues in domestic relationships that are just as toxic and dangerous,” Matt McCluskey told the New York Times in February. His daughter, 21-year-old Lauren McCluskey, was kidnapped and killed by her ex-partner in 2018 after reporting the violence to her school.

Intimate partner violence is fundamentally about power and control: In addition to or in place of overt violence, abusers might use tactics such as limiting victims’ sleep, internet access, or free time. Actions like this undoubtedly impact victims’ educational access; term papers can’t be turned in when your partner is intentionally keeping you from working. But under DeVos’ rule, schools would be allowed—and even encouraged—to write this abuse off as inconsequential.

Even worse, IPV is patterned behavior, and without intervention it will almost always escalate over time. If DeVos has her way, by the time schools are mandated to respond to IPV, it may be too late.

Like in the cases of Lauren McCluskey, Yeardley Love, and Jaelynn Willey—all students who lost their lives because of schools’ and systems’ failure to respond to IPV—abuse could become fatal. Students who come forward seeking help need to be taken seriously by their schools, rather than silenced. For those experiencing IPV, it’s not just a matter of equal access to education, but of life and death.

While many supporters of DeVos’ rollback have insisted survivors of IPV should turn to the police instead of their schools, survivors seeking recourse through the criminal legal system face an uphill battle. Police responses to IPV are woefully inadequate, with over 80 percent of advocates and service providers reporting that police did not take survivors seriously or blamed them for the abuse. Lauren McCluskey, for instance, had her case repeatedly ignored not just by her school, but also by local law enforcement officers in the weeks leading up to her death—officers who, instead of helping her, bragged about having explicit photos of her days before her murder. Coupled with the unnerving fact that law enforcement households are more likely to experience domestic violence, survivors are left with few options that feel safe.

The DOE’s new rule threatens to unravel years of fierce activism by survivors to protect their right to an education free from violence. If it goes into effect, it will embolden perpetrators of IPV, creating loopholes for schools to ignore the suffering of students in abusive relationships.

The consequences are unimaginably severe: Not only will survivors lose access to educational opportunities, but they may also lose their lives. While DeVos makes hollow claims about her commitment to dating and domestic violence victims, student groups across the country are fighting back against this rule before it goes into effect on Friday—join them.