Critical Evaluation Of The New Title IX Regulations

Sexual assault and harassment has become an increasing issue on many college campuses. With the changing political administration in the United States, there has been a variety of revised laws and regulations addressing the Title IX Act of 1972. The Title IX Act, prohibited any educational institutions that receive federal funding, from denying a person access to an program or benefit based on their sex. Although Title IX focuses on discrimination, it has a broad scope when applying to sexual harassment. In Part D of the Title IX Act, subsection 2(b), an institution or school is legally required to respond and remedy the situation, as to not create a more hostile environment. This act also legally enforces each school to designate a Title IX Coordinator who is responsible for handling these allegations, as well as the grievance process. The rules and regulations for Title IX have been revised and reissued numerous times, however the most recent revision was in November of 2018 under the Trump Administration’s Secretary of Education, Betsy DeVos.

Betsey DeVos has proposed very significant changes to a variety of standards and definitions in the Title IX Regulations. In the Sexual Harassment Guidance issued in 2001 by the Office of Civil Rights, sexual harassment was defined as 'conduct of a sexual nature is sufficiently severe, persistent, or pervasive to limit a student's ability to participate in or benefit from the education program, or to create a hostile or abusive educational environment.' DeVos proposed that new component of the sexual harassment definition being “Unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.” DeVos’ new definition is much more extreme, therefore making it more difficult to prove what is classified as sexual harassment.

Another recommended change to Title IX regulations are that in order for a school to be held liable, the school must know of sexual harassment allegations and respond in a deliberately indifferent manner. This is a very low expectation for schools (OCR, 2018). DeVos’ new definition and subsequent regulation arises from two prior court cases, Gebser v. Lago Vista Independent School District (1998) and Davis v. Monroe County Board of Education (1999), in which plaintiffs sued educational institutions for monetary damages. In Gebser, the court found that a school can be liable if a teacher sexually harasses a student and an official is “deliberately indifferent in responding to the harassment”. In addition, in Davis v. Monroe County Board of Education (1999), the court found that a school also may be liable when one student sexually harasses another student and an official is “deliberately indifferent”. These two cases lay precedent for what the plaintiff has to prove in order to be awarded monetary damages, yet the liability standards were limited to private action and litigation.

After these cases were decided, federal agencies still had the power to enforce regulations within Title IX that are not for damages. For an internal investigation of a school, there is a different standard stated in the 2001 Guidance, as well as clarified in a Dear Colleague Letter issued in 2011 by the Obama Administration. According to the 2011 Dear Colleague Letter, schools are held liable if they knew or reasonably should have known of sexual harassment and did not take immediate action to eliminate and address the issues. The administration held that the actual knowledge and deliberate indifference standard in Davis v. Monroe (1999) only holds for private actions and monetary damages. Yet, currently DeVos’ 2018 regulations posit that schools do not have to respond “immediately”, but only “meaningfully” to the harassment complaint.

One of the largest and possibly most influential changes DeVos plans to make is the standard for making a decision regarding if sexual harassment or an assualt actually occurred. During the past 30 years, The Office of Civil Rights has used the preponderance of the evidence standard, meaning that it is more likely than not that harassment occurred. When the Obama Administration’s regulation was released in 2011, some instituitons were still using the clear and convincing standard, meaning that it is highly probable or reasonably certain that the sexual harassment occurred. This clear and convincing standard is a higher standard of proof and in 2018, DeVos proposed that a decision must be made by applying either the preponderance of the evidence standard or the clear and convincing evidence standard. This is in direct conflict with the 2011 guidelines in which institutions that use the clear and convincing standard are not consistent with Title IX. DeVos also positis that if a school uses proponderance of the evidence, then they must also use it in other instances or vioaltions that do not relate to sexual harassment, but have the same sanction associated. Therefore if a college decides to use the higher standard of clear and convincing evidence, they only have to use if for sexual harassment cases and not other cases.

DeVo’s proposed changes also assist in narrowing a school’s liability based on where an assault occurred. In the Title IX Act of 1972, the revised regulation of 2001, as well as the Dear Collegue Letter in 2011, it was determined that schools may have a duty to respond if sexual harassment or violence occurred off school grounds and impacts student life on campus. However, DeVos’ proposed guidance simply states that “the alleged harassment must involve conduct that occurred within the school’s own program or activity”, as well as has to have occurred in the United States. Therefore, schools will not be responsible for harassment or assault occurring during study abroad programs. Perhaps the most disturbing new 2018 regulations is regarding cross examinations. Typically it is strongly discouraged to allow the accused to cross examine the accuser regardless of if it was done by another individual (ORC, 2011). However, now colleges must hold live hearings in which the alleged perpetrator be allowed cross examination using their party’s advisor.

Although DeVos has rescinded many of Obama’s 2011 regulations, some still remain in place on college campuses. DeVos withdrew that guidance in September 2017, and in November 2018, released new Title IX regulations. Currently in 2019, the notice and comment period is closed and the Department of Education is reviewing them. DeVos’ new regulations could have huge impacts on our current society, even if her goal is to give both the accuser and the alleged perpetrator equal rights. At a time where individuals are finally feeling comfortable to speak out, the fear of cross examination or a higher burden of proof may make victims less likely to report allegations. According to Brenda Adams, an attorney with Equal Rights Advocates, 'It's hard enough for a victim to come forward. There's social stigma. Our society simply does not believe that women tell the truth. … The rate of false reporting is no higher for sexual violence than it is for any other conduct or crime.' 

In Calavita’s book, she discusses the gap between law on the books and what occurs in action on the ground. Although the 1972 Title IX Act has been codified into law, there are extreme differences in the way that educational institutions apply the rules. In part due to the vagueness of the Act and subsequent regulations, but also due to the confusion surrounding the entire process. Students at educational institutions are not aware of what their rights are, especially when they continue to change with every new political administration. The public’s understanding is often lacking when it comes to Title IX rights and violations, however, people are learning and many are not seeing these new proposals as fair or legitimate.

According to Calivita, hegemony is the power to shape reality without calling attention to itself. Betsy DeVos wanted to do just this with her new regulations. For a long time the Obama Administration had laid the ground rules for Title IX violations. It can be argued that they protected the accusers than the accused. However, this was accepted and seen as the standard especially on college campuses. Devos wanted to create and shape a new social reality, one where accusers had less rights, and schools less liability. Unfortunately, for the Trump Administration these new regulations resulted in a substantial uproar, calling vast attention to it, with a hundred thousand comments and suggestions.

Yet, the uproar is not as substantial as some may think, as there is still widespread support for this administration. Our society seems to be moving toward a less “liberal” place, in which we begin to stop believing women. In spite of the #MeToo movement, it is still the norm for many powerful political leaders to face no repercussions for sexual harassment and assault. In September of 2018, Justice Kavanuagh was admitted to the Supreme Court, one of the highest offices, despite Ford’s allegations of sexual assault. Our social norms have shifted and the current events surrounding sexual harassment has illustrated this. Even though we seem to be progressing in regards to more people speaking out, the social meaning of assault allegation is still unchanged when a person comes forward, there is still disbelief and even personal attack. The government has manipulated this social meaning in creating the new Title IX regulations. The government is giving an official meaning to Title IX, as well as recalibrating liability for schools. It is striving for its own political sense of accuracy in which victims are allowed to be cross examined, and must prove their assault to a higher standard, which may shame the victim.

Although law is a social construction, legislation is there to protect the people who elected officials to create it. Under DeVos’ new policies, many feel like they are being failed. This mirrors and represents the society as well. People’s legal consciousness has been altered by current movements, as the public becomes more aware of contemporary issues. People’s ideas about law and what is fair are shifting. These new Title IX regulations seem to be pushing more blame upon the accusers, many of whom are women. This follows Neilson’s autonomy paradigm, in which the seriousness of harassment is downplayed and the control is shifted toward women. In Neilson’s study, women took complicated actions to avoid being the target of street harassment. Often these individuals, interrupted the harassment as being harmless or even socially acceptable. The fear is that sexual harassment and assault will go back to being a normalized part of society, where people do not want to be helpless victims. Neilson writes about the “good girl approach” where females avoid sexually explicit comments by not dressing or acting provocatively and by avoiding traveling to inappropriate areas. Additionally, some say that using the legal system to assist with this makes people seem weak. There is already concern about being made to be the victim, and these new regulations, just increase this stigma. Some supporters of DeVos’ new regulations may argue that it is more practical than the Obama Administration’s rules. That it eases the difficulty associated with a lower standard of preponderance of the evidence, and simplifies what consists of sexual harassment and assault. However, isn’t making a definition simpler, or liability limited, a violation of justice? A student activist at Columbia University, Anja Chivukula says that 'the federal government has endorsed a standard which deems some forms of sexual misconduct to no longer be sexual misconduct. And to know that the university may in some ways abide by that standard doesn't make me feel that safe.”