You may have read that the Secretary of Education, Betsy DeVos, recently issued new Title IX guidance that rescinded Obama-era Title IX documents. This is the second hit to the enforcement and implementation of this law since Trump took office. (First was the May 2016 transgender guidance letter rescinded by Trump and Sessions in February of 2017.) So what does it mean when guidance is removed? What did these documents say and what does this mean for schools? In this post I provide a summary of four main changes that are important to be aware of and what they mean for students, parents, and educators.
The two documents impacted by this latest action are a 2011 Dear Colleague Letter (DCL) and a 2015 Q&A document which have been rescinded and replaced by a new Dear Colleague Letter dated “September 2017” released by the U.S. Department of Education on September 22, 2017. In 2016, Title IX cases made up 46% (7, 747) of the complaints made to the Office of Civil Rights. It is essential that educators understand it and continue to uphold the intent of this law.
Most analysts have focused the change to the “standard of evidence” which raises the expectation from a “preponderance of evidence” which is the current standard for any Title VII Civil Rights complaints. This means that the school has to find that it is “more likely than not” that sexual misconduct occurred. With the new Devos-era guidance, the OCR is shifting to say that schools must use the same standard of evidence for any violations of the student code of conduct and if the standard for cheating, for example, is “clear and convincing” than this higher standard must be used in Title IX cases too. This goes against existing civil rights case law and makes it much harder for victims of sexual violence to see their perpetrators held accountable as evidence in these cases is often less tangible and a "clear and convincing" case is significantly harder to establish.
Another shift I noted is in the language surrounding “interim measures.” These are the steps schools can take to minimize the toxic environment for an alleged victim and reduce contact between the alleged perpetrator and victim in the period between filing a complaint and reporting of findings from the investigation. In the 2014 guidance the OCR stated, “In general, when taking interim measures, schools should minimize the burden on the complainant” (2014, Q&A pg 33). This was designed to ensure those filing complaints didn't lose housing or suffer academic consequences while the investigation was being conducted. However, now the 2017 documents state, “In fairly assessing the need for a party to receive interim measures, a school may not rely on fixed rules or operating assumptions that favor one party over another, nor may a school make such measures available only to one party” (2017, pg 3).This phrasing is reminiscent of Trump’s “both sides” comments following the Charlottesville conflicts sparked by White Supremacist demonstrations and removes protections designed to alleviate the burden on survivors of sexual assault. This approach is based on and elevates the myth of false-reporting of rape when in actuality only 2 percent of rape charges are found to be false.
A third major difference I noted is in the timeframes recommended to conduct and conclude investigations. The terms “prompt" and "timely” are part of both sets of documents, however, they are described differently. “Prompt” in 2011 DCL language is described as “a typical investigation takes approximately 60 calendar days following receipt of the complaint. Whether OCR considers complaint resolutions to be timely, however, will vary depending on the complexity of the investigation and the severity and extent of the harassment.” Whereas, in the 2017 DCL Language they assert that “There is no fixed time frame under which a school must complete a Title IX investigation. OCR will evaluate a school’s good faith effort to conduct a fair, impartial investigation in a timely manner designed to provide all parties with resolution.” The lack of specifics on what a prompt or timely investigation looks like could leave many complainants and respondents wondering about the outcome of their case and living in a difficult place of uncertainty much longer than necessary.
What is missing completely from the 2017 document is any information about education and prevention. Whereas both the 2011 DCL and 2014 Q&A documents provided dedicated sections to steps schools should take to educate their staff and students and preventative actions to reduce incidents of sexual violence on their campuses. As a result, I would like to include that section of the 2011 DCL in its entirety here:
In addition to ensuring full compliance with Title IX, schools should take proactive measures to prevent sexual harassment and violence. OCR recommends that all schools implement preventive education programs and make victim resources, including comprehensive victim services, available. Schools may want to include these education programs in their (1) orientation programs for new students, faculty, staff, and employees; (2) training for students who serve as advisors in residence halls; (3) training for student athletes and coaches; and (4) school assemblies and “back to school nights.” These programs should include a discussion of what constitutes sexual harassment and sexual violence, the school’s policies and disciplinary procedures, and the consequences of violating these policies.
The education programs also should include information aimed at encouraging students to report incidents of sexual violence to the appropriate school and law enforcement authorities. Schools should be aware that victims or third parties may be deterred from reporting incidents if alcohol, drugs, or other violations of school or campus rules were involved.40 As a result, schools should consider whether their disciplinary policies have a chilling effect on victims’ or other students’ reporting of sexual violence offenses. For example, OCR recommends that schools inform students that the schools’ primary concern is student safety, that any other rules violations will be addressed separately from the sexual violence allegation, and that use of alcohol or drugs never makes the victim at fault for sexual violence.
OCR also recommends that schools develop specific sexual violence materials that include the schools’ policies, rules, and resources for students, faculty, coaches, and administrators. Schools also should include such information in their employee handbook and any handbooks that student athletes and members of student activity groups receive. These materials should include where and to whom students should go if they are victims of sexual violence. These materials also should tell students and school employees what to do if they learn of an incident of sexual violence. Schools also should assess student activities regularly to ensure that the practices and behavior of students do not violate the schools’ policies against sexual harassment and sexual violence (pg 14-15).
The 2014 Q&A document also included four pages of information on "training, education, and prevention" including information about employee training on preventing and responding to complaints of sexual violence, as well as topics to be included "at a minimum" in training for students which include:
- Title IX and what constitutes sexual violence, including same-sex sexual violence, under the school’s policies;
- the school’s definition of consent applicable to sexual conduct, including examples;
- how the school analyzes whether conduct was unwelcome under Title IX;
- how the school analyzes whether unwelcome sexual conduct creates a hostile environment;
- reporting options, including formal reporting and confidential disclosure options and any timeframes set by the school for reporting;
- the school’s grievance procedures used to process sexual violence complaints;
- disciplinary code provisions relating to sexual violence and the consequences of violating those provisions;
- effects of trauma, including neurobiological changes;
- the role alcohol and drugs often play in sexual violence incidents, including the deliberate use of alcohol and/or other drugs to perpetrate sexual violence;
- strategies and skills for bystanders to intervene to prevent possible sexual violence;
- how to report sexual violence to campus or local law enforcement and the ability to pursue law enforcement proceedings simultaneously with a Title IX grievance; and
- Title IX’s protections against retaliation (pg 41).
The 2014 Q&A document was thorough, detailed, and provided many case studies and examples that offered schools and universities specific scenarios that are meaningful to practicing educators trying to support the best interests of their students while complying with the law. By removing this document, DeVos and colleagues invite more uncertainty to cloud an already difficult and complicated topic. They also invite a relaxing of attention to preventative efforts that campuses have put on the topic of campus sexual violence. Fortunately, many institutions of higher education have noted that these new regulations don’t require changes to reforms that were instituted under the prior guidance. As a result, several universities, including my own, have issued statements informing their communities that nothing will change other than a review of procedures to ensure that they are still in compliance with the new guidelines. It is my hope that the education and prevention programs that were instituted under the prior guidance will remain in place because schools have found them to be valuable for their students and they have already invested in designing and implementing them.
The law is still the same. Schools must prevent sex-based discrimination and react responsibly when they learn it is taking place. I encourage educators to continue to refer these earlier documents as reference points when faced with interpreting and applying Title IX in their school communities.
Lhamon, C. (2014). Questions and Answers on Title IX and Sexual Violence. Washington, D.C.: Office for Civil Rights.
Ali, R. (2011). Dear Colleague Letter: Sexual Violence. Washington, D.C. Retrieved from http://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/sex.html.