On May 6th, 2020, Secretary of Education Betsy DeVos announced major changes to Title IX, weakening vital protections against sexual harassment and sex discrimination in higher education.

Since 1972, Title IX has prohibited sex discrimination in educational institutions that receive federal funding, creating safer, more equitable environments for women and LGBTQ+ people by ensuring schools are proactive in combating sex discrimination. After Title IX, universities receiving federal funds could no longer refuse to admit women, expel pregnant and parenting students, or deny female students equal access to athletics. The broad scope of the amendment has also required schools to respond to and remedy instances of sexual harassment and sexual violence, making higher education safer and more accessible for all.

Though national attention has been focused on the need to do more to protect students, the recent changes will allow schools to do less. Our partners, led by the National Women’s Law Center, explain what’s at stake:

New Barriers for Sexual Assault Survivors

The Department of Education’s final rule will weaken Title IX requirements that protect survivors of sexual harassment and assault. In an over 2,000-page document, the Trump administration outlines requirements and guidelines which will make it more difficult for students to seek justice. The new rule will:

Narrow the definition of sexual harassment.

  • For the purposes of Title IX, sexual harassment will now be defined as “any unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal educational access.” 
  • This new definition sets a higher threshold that behavior must meet in order to be considered sexual harassment. This could subject students to escalating levels of abuse and limits the ability of survivors to speak out about their experience.

Limit the circumstances under which sexual harassment and violence is reportable.

  • Schools must only respond to sexual harassment that occurs on the school’s grounds or in its activities. This standard notably excludes sexual harassment that occurs in off-campus housing, online sexual harassment, or study abroad programs.
  • Only designated, high-ranking employees will be required to report incidents of sexual harassment. Colleges and universities will not be required to act if a student asks an advisor, coach, or professor for help.

Institute a response and investigation process that is overly-complicated and potentially traumatizing.

  • Schools will be required to start an investigation with the presumption that the accused is not responsible for the alleged assault or harassment. The survivor will be required to meet a more demanding standard of proof than is used when evaluating other types of misconduct.
  • Survivors and their witnesses will be required to undergo a live cross-examination, during which they will come face-to-face with the accused. Schools will have broad freedom on how to handle the live hearing, including which standard of evidence the survivor must meet and possible disciplinary measures. This turns schools into courtrooms in which students don’t have the same legal protections as in an actual trial and could subject survivors to further undue trauma.
  • Schools will be allowed to offer informal resolution options, such as remediation or restorative justice, which the accused can refuse to participate in. If the accused is found responsible, the school may only consider non-punitive outcomes like schedule or housing changes. Suspensions and expulsions are not permissible.

These new standards shift the burden from the accused to the survivor. By making survivors to meet more specific requirements, meet higher standards of evidence, and go through lengthy and difficult processes to seek justice, these requirements will discourage victims of sexual harassment and assault from coming forward. Furthermore, these heightened standards of evidence and overly skeptical investigation procedures perpetuate the toxic stereotype that women and girls are likely to lie about sexual assault and harassment.  

A License to Discriminate for Religious Schools

These new standards also permit religious schools to opt out of sex discrimination prohibitions without notice.

Religious schools wishing to use Title IX’s sweeping religious exemption to discriminate on the basis of sex will no longer be required to notify the Department of Education or students in advance. This means that students may enroll in and attend a university without prior knowledge that they may be subject to discrimination. Under this new rule, there would be no way to track which universities intend to opt out of Title IX rules, and why they are doing so — which will be particularly harmful to women and girls, LGBTQ+ students, pregnant or parenting students, and students who access or attempt to access birth control or abortion.

Requiring schools to be transparent about their Title IX exemptions is incredibly important. It allows students to make informed choices about their education and safety. Under this new rule, students will not know whether they can be punished for their sexuality, their gender identity, their reproductive health choices, or their personal beliefs.

This rule is scheduled to take effect on August 14th, 2020. Interfaith Alliance supports efforts to prevent these changes from going into effect, including litigation initiated by the ACLU against the Department of Education and Secretary DeVos. Visit the National Women’s Law Center for more information on how the new Title IX rule will make schools more dangerous for all students.

Learn more about Interfaith Alliance’s work to strengthen public schools and create safe spaces for all students.