Editor's note: This interview was based on the draft of the Education Department's policy proposal, which was leaked in August. The official proposal, which came out November 16, is slightly different from the draft version we reported on.
Title IX, a federal statute most commonly associated with women’s access to sports, also requires schools to look into allegations of student sexual misconduct. But, in practice, how do schools deal with these sorts of allegations?
Since 2001, the Bush and Obama administrations have both released guidances on how schools should interpret Title IX and enforce sexual misconduct policies. Now, the Trump administration is preparing to release its own set of campus sexual assault policies, which are expected to increase protections for the accused and limit liability for schools.
Equal Rights Advocates Staff Attorney Maha Ibrahim explained to YR Media how these new campus sexual assault policies might play out in practice for students who make claims of sexual harassment and for the accused. Equal Rights Advocates is a national non-profit that works to ensure women's equality, including survivors of campus sexual assault.
This interview has been edited for length. For Part 1, click here.
How will the proposed regulations change the rights and protections for students who claim they’ve been sexually assaulted?
These new proposed regulations are very dangerous for and potentially harmful to victims.
If a school provides for a Title IX hearing, the proposed rules would allow a survivor to be directly asked questions by his or her rapist. Under previous guidance, direct questioning of the survivor by their alleged rapist was not permitted—the questioning had to come from a school official. The proposed rules also allow mediation to be used to resolve sexual violence, where the 2001 guidance explicitly prohibits mediation in cases of sexual violence, as it has been proven to be traumatic for survivors.
What protections and rights do accused students stand to gain?
The accused will become a specially protected group of individuals under these regulations. They will benefit from a higher burden of proof for a finding to be made against them. This is not just a higher burden than for any other act of student misconduct in a school investigation context, such as stealing or vandalism, but it is a higher standard of proof than almost all other civil matters.
Accused students will also be allowed to have additional rights of appeal that are not extended to students who have been harmed by the accused. In its most troubling extrapolation, a Title IX attorney we’ve worked with often refers to this as “special rights for rapists.”
This means students can face more accountability and intervention from their schools for plagiarizing a classmate’s work than for raping a classmate. We really have to let that sink in.
Will schools still be liable for sexual assault and harassment between students?
Schools will still be held liable for sexual assault and harassment between students. Schools can be held liable through students filing lawsuits in court, or individuals can file with the U.S. Department of Education, Office for Civil Rights, which can require schools to change their policies.
But the standard to hold a school liable in court is already high. A plaintiff has to show that their school was deliberately indifferent to their complaint(s).
The proposed regulations themselves are in fact deliberately indifferent to victims. If they become law, then proving to a court that your school provided even less process and protections to you as a victim than this Department of Education has required under Title IX will be nearly impossible.
Would schools still have to address sexual assault in the case of an off-campus party?
This is arguably one of the biggest changes in the regulations. As written, schools will only be required to address harassment or assault that occurs on campus.
The DOE’s proposed rules would only hold schools accountable for formal complaints filed through proper authorities. Do you know what this means? Why would this be challenging for victims of sexual harassment and assault?
This means that schools would only be accountable if a formal complaint is filed with certain designated individuals at the school or in the district, most likely the Title IX Coordinator. This poses a number of barriers to victims of sexual harassment and assault.
At the K-12 level, there are concerns students will not be able to comprehend formal complaint forms or be able to legally sign them on their own. Additionally, K-12 students are far less likely to be able to find a school district official who is at a central district office in order to file a complaint of sexual harassment or assault. At all educational levels, victims who have been assaulted are unlikely to report or discuss their assault with individuals who they do not know or trust. Previously, schools would be held accountable if any “mandated reporter” knew or had reason to know sexual assault or harassment occurred. This included all teachers, professors, teacher’s aides, resident assistants, and all school employees. By not holding schools accountable for reports to trusted individuals who are not “proper authorities,” victims will be even less likely to be able to gain access to the resources they need to regain or protect their access to education after harassment or assault.