The New Title IX Proposal: Protecting Institutions at the Expense of Survivors

Title IX has long been the major force driving gender equity in education. While most commonly known for expanding athletics opportunities for girls (and boys) over the past 45 years, Title IX prohibits all forms of sex discrimination at any educational institution or program receiving federal funding. The U.S. Department of Education is responsible for holding schools accountable to the promise of Title IX, including ensuring that students can attend school free from sexual harassment and violence. Unfortunately, the Department’s newest proposed rules abdicate this responsibility, helping schools evade Title IX obligations at the expense of students’ civil rights.

Over the past decade, there has been increased recognition that sexual harassment and assault create an unequal educational environment. According to research by the American Association of University Women (AAUW), more than sixty percent of college students experience some form of sexual harassment, and nearly half of students in grades 7–12 had experienced some form of sexual harassment in the past school year. Numerous other studies have confirmed these findings about both college students and middle- and high-school students.

An environment fraught with sexual harassment and violence can severely impede a student’s ability to perform well in school, and in extreme cases can even prompt them to drop out. Recognizing this reality, the Department of Education and advocates have spent years honing enforcement of Title IX to ensure that students who experience sexual harassment and assault can come forward, seek justice, and proceed in a supportive educational environment.

Recently, the Department published a Notice of Proposed Rulemaking that would eviscerate these hard won gains and drastically reduce schools’ obligations when responding to reports of sexual harassment and violence. After decades of promising movement towards ending sex discrimination, and a year after the #MeToo movement began a cultural reckoning confronting sexual harassment, assault, and violence, these proposed changes represent a retreat to an old approach of sweeping inconvenient truths under the rug.

The proposed regulations are designed to limit when and how schools must act to help their students, and those limits are imposed at the expense of students who have been harmed. Some of the proposed changes include defining sexual harassment so narrowly that students could be subjected to repeated abuse before action is taken, limiting the situations in which schools are required to intervene, imposing an adversarial process at colleges with possible re-traumatizing effects on survivors, and empowering fewer school personnel to help.

Each of the Department’s changes alone presents an obstacle for a student seeking to report sexual harassment or sexual violence, but, when taken together, these policies could present insurmountable barriers to justice for students simply trying to obtain the education Title IX guarantees.

These measures will also deter reporting of incidents of sexual harassment and assault, exacerbating the already prevalent problem of under reporting. According to new analyses by AAUW, only 11 percent of colleges and universities disclosed any reported any incidents of sexual assault last year. Similarly, only 21 percent of K-12 institutions disclosed reported incidents of sexual harassment or bullying. These numbers are out of line with the reality of what students experience. Under reporting is already the norm, and the new rules would make students feel even less comfortable coming forward and encourage schools to continue turning a blind eye to sexual violence.

The proposed regulations protect institutions rather than students. The thinking goes, if people don’t report sexual harassment, assaults, and rapes, we can continue to believe this is not happening at our schools. The new rules would help schools’ reputations remain “untarnished,” but only by disregarding schools’ Title IX obligations to students. At this time in history, it makes little sense to give survivors less recourse rather than more.

With these changes, the Department of Education seems to be enabling schools evade their responsibility to create a safe learning environment for all students. This is true despite an analysis finding that during a comment period after the Department’s last move to undermine Title IX in September 2017, 99 percent of the Title IX-related comments were in support of the law, and 97 percent of those comments supported the previous, stronger regulations.

We urge everyone to make their voices heard. Sexual harassment and violence have silenced survivors for too long. We need to fully enforce our civil rights laws, not undermine them. In undermining those laws, we undermine our nation’s students and Title IX’s original promise of equal access to education for all students.