A Look Inside the New Title IX

The Trump Administration Takes on Sexual Misconduct

Title IX of the Education Amendments of 1972 is a federal law that prohibits discrimination on the basis of sex in any federally funded educational program or activity. Sexual harassment, rape, and sexual assault are included as discrimination on the basis of sex. On May 6, 2020, the Department of Education released a revision to Title IX rules that has become controversial. Regardless of the demands by critics, some of whom took legal measures to stop the new Title IX revisions, colleges are required to implement the measures by this August 14.

Janet Napolitano, president of the University of California system, opposed the revisions and promised the UC’s commitment to protecting students. Napolitano continued, “We remain steadfast in our commitment to our students and community, and will respond to the rules with care and thoughtfulness. We have come too far as a nation to halt our progress against sexual harassment.”

Title IX serves as an important remedy to combat sexual violence for students on college campuses. One of the most notable of the recent changes to the law is the definition of sexual harassment or misconduct. This wording determines what educational institutions are responsible for investigating. The changes written by the current U.S. Department of Education, under revision since 2017 after Secretary of Education Betsy DeVos denounced the Obama-era guidelines, are the first complete revision to Title IX since 1975.

The Obama administration defined harassment as “unwelcome conduct of a sexual nature.” The Trump administration reworded this as “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 recipient’s education program or activity.”

For college students, Title IX is incredibly important in the preservation of their well-being. Surveys show that 11.2 percent of all undergraduate and graduate students experience rape or sexual assault through means of physical force, violence, or incapacitation, and 1 in 6 female college students receive sexual violence victim assistance. Among all undergraduates, 1 in 5 female undergraduate students are victims of rape or other forms of sexual violence. Despite these statistics, only 20 percent of female victims report their assaults.

Critics view this change as narrowing the scope of sexual misconduct and allowing for too much interpretation of a victim’s experience. They also believe this change belittles less severe forms of sexual misconduct such as conduct short of violent sexual assault.

Notably, the new Title IX also no longer requires mandatory reporting. Mandatory reporting means there are certain individuals that have to record incidents of sexual misconduct. The process is shown to help victims of sexual harassment in their cases when there are prior documented complaints against the potential assailant, even if those complaints were not investigated.

Under the new Title IX, colleges are only responsible for investigating cases where the complaints happen on campus or at a university-sponsored program or activity. Obama-era rules required colleges to investigate all formal complaints, regardless of where they took place. Critics point out that this decreases colleges’ responsibility to protect students, as many alleged incidents of misconduct happen off-campus.

The new document issues important changes to the trial process. The first of these changes is an individual accused of sexual misconduct will be given the right to cross-exam their accuser. This process will be done in a live hearing by an attorney or an adviser. However, both parties may be separated and cross-examined using technology if need be. Obama-era Title IX legislation preferred not to use cross-examination due to its potential to inflict trauma on victims.

Critics of the revisions side with Obama-era rules on cross-examination, viewing them as potentially harmful to victims and invasive. Critics also point out that not all victims or alleged perpetrators have the same resources to hire legal counsel and may not have access to the right assistance.

Secretary DeVos and supporters of the new Title IX believe this process will dissuade false complaints of sexual misconduct and force universities to use more formal trial processes. However, only around 2 percent of reported sexual assaults turn out to be falsified.

Another major change is that colleges have the option to use a more difficult standard of proof by requiring “clear and convincing” evidence. The evidence is to be collected by the college, not by those involved in the complaint, and the burden of proof lies on the university. This replaces the Obama-era recommendation to colleges that urged institutions to use the “preponderance of the evidence” standard meaning if it is more likely than not an incident occurred.

According to the Department of Education, requiring a higher standard of proof will help protect the innocent. Critics believe this places a burden on victims which may cause them more trauma and lessen their chances for justice.

The new Title IX was immediately criticized by civil rights attorneys, women’s rights groups, advocates for victims of sexual violence, former Department of Education secretaries, and leading Democrats, including Speaker of the House Nancy Pelosi and Joe Biden, and Santa Barbara’s State Senator Hannah-Beth Jackson. Pelosi described the new rules as “callous, cruel, and dangerous, threatening to silence survivors and endanger vulnerable students in the middle of a public health crisis.”

Jackson commented, “Even in the midst of the coronavirus pandemic, the Trump Administration wastes no opportunity to be misogynistic and cruel. The recently released Title IX regulations jeopardize the civil rights and safety of student survivors while discouraging others from reporting abuse.” Jackson is pressuring California lawmakers to pass Senate Bill 493, which aims to provide a fair and transparent sexual misconduct investigation process for California Schools.

California Attorney General Xavier Becerra has also been an outspoken opponent of the new regulations. Becerra filed a multistate lawsuit on May 6 in coalition with 19 other attorney generals to suspend the Trump-era Title IX regulation. He addressed his concerns with the document, commenting, “The President has made it abundantly clear time and time again that he has no empathy or regard for survivors of sexual violence — and this rule makes it harder for students to get help,”

The Department of Education’s first reason to change Title IX was it would potentially save the Department of Education upward of $200 million in the next decade while also, according to Education Secretary Betsy DeVos, providing “fair, reliable procedures that provide adequate due-process protections for those involved in grievance processes.”

DeVos further justified revising Title IX in stating, “Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault.”

The revised Title IX statute completely separates itself from former procedures. Supporters of the changes believe this protects due process as explained by Assistant Secretary Kenneth L. Marcus of the Office for Civil Rights, who stated, “The new Title IX regulation is a game-changer. It establishes that schools and colleges must take sexual harassment seriously, while also ensuring a fair process for everyone involved. It marks the end of the false dichotomy of either protecting survivors, while ignoring due process, or protecting the accused, while disregarding sexual misconduct.”

Regardless of the Department of Education’s defense of revising Title IX, critics remain certain these changes are unwelcome and destructive, viewing them as out of touch and harmful to victims.

Attorney General Becerra expanded on this: “Instead of safeguarding critical protections for survivors of sexual violence, the president waters them down. This is 2020, not 1920. Our focus should be on protecting our students and families, not burdening academic institutions with complicated, backward regulations.”

Correction: This story was changed on July 21 to correct the former evidence standard of “beyond a reasonable doubt” to “preponderance of the evidence.”

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