Let's Talk Title IX
Title IX is a federal, civil rights law that requires any K-12 school or institution of higher education to uphold gender equity in their politics and practices. Since the Clinton administration, Title IX has been interpreted to provide protections for students experiencing sexual violence.
Let it be made explicit that the 2,000+ page document released by the Department of Education is wrought with misogynistic and victim-blaming rhetoric; in order to justify these Title IX changes, the document is grounded in the false assumption that survivors of sexual assault lie or exaggerate their claims; and it should also be noted that while every survivor of assault will suffer as a result of these changes, historically marginalized groups will face even higher barriers to justice.
Below Are The Changes Introduced by the Department of Education:
1. The definition of “sexual harassment” has been severely narrowed:
While sexual harassment encompasses sexual, dating, and domestic violence, as well as stalking, the new definition of harassment has been limited to “unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it denies a person access to the school’s education program or activity.”
The Obama administration, by contrast, used a broader definition, which included a range of conduct that “interferes with or limits” a student’s access to the school. The new standard is preposterously high. It raises serious questions as to what constitutes a “reasonable person” & implies that harassment is only “real” harassment if a survivor is effectively unable to continue with their regular education, ensuring that students would likely have to experience escalating and ongoing violence for their claim to be credible.
Schools may dismiss complaints that do not meet this standard, even if the allegations are proven to be true.
2. Schools are required to hold live Title IX proceedings which include direct cross-examinations of both parties:
These cross-examinations will occur by an advisor of the student’s choice. This advisor need not be a lawyer. Consequently, a survivor may be required to undergo cross-examination by their perpetrator’s parent, friend, coach, or any other individual with a vested interest in the party’s innocence. Additionally, if these “live” hearings occur virtually, this raises severe equity issues for students. It is also worth noting that this live-hearing model is not applied to any other form of student misconduct (ie: drinking, drugs). During these hearings, however, only relevant questions must be answered, medical/psychological records can only be used with voluntary consent, and schools are prohibited from retaliating against students who engaged in other illicit behavior (ex: underage drinking) during the time of the assault.
3. Schools are now entitled to choose the evidentiary standard they use during harassment proceedings:
There are 2 main evidentiary standards: 1) “Preponderance of Evidence,”which states that the burden of proof is met when the party with the burden (ie: the survivor) convinces the fact-finder that there is greater than a 50% chance that their allegation is true.
2) “Clear and Convincing Evidence” which states that evidence must be highly and substantially more likely to be true than untrue; it must be unequivocal, convincing, and satisfactory.
Historically, schools have been required to use the “preponderance of evidence” standard.
Now that schools have the choice, they can require survivors of sexual violence to meet a HIGHER evidentiary standard in their trials (the “clear and convincing” standard), thereby problematically implying that students reporting sexual violence are more untrustworthy and must accordingly provide greater and stronger evidence.
Given the extreme lack of evidence present and available in most sexual harassment proceedings, this is dangerous. Moreover, it is unjust to allow schools to choose a different standard of evidence for sexual misconduct than they would other forms of misconduct, such as underage drinking.
4. These changes make it substantially harder to hold schools legally accountable for failing to address claims of harassment:
This is happening in 2 primary ways.
The first: schools must only investigate those incidents which occur on school property, at school-sponsored events, or during school-sanctioned activities; this DOES NOT include off-campus bars or off-campus houses, for example, though it DOES include school-sanctioned fraternities/sororities.
The second: schools must have “actual knowledge” of the episode in order to be held responsible, as compared to the 2011 rules which could hold schools responsible if they “reasonably should” have known about the incident.
5. These new changes greatly bolster protection for students accused of sexual harassment:
Title IX must provide “supportive measures” to students accused of harassment, and they must give students “written assurance” that they are innocent until proven guilty.
Moreover, schools are prohibited from taking any action against accused students until the proceeding is finished & a verdict reached. This means, for example, that a student could not be removed from campus, be asked to change housing, or be temporarily barred from their activities until the proceedings are over.
The only exception is if a student is perceived in the judgement of the school to be “an ongoing threat to student safety.” This all assumes that the survivor filing a claim is lying or exaggerating, and, therefore, the accused person must be protected.
6. Schools are not required to adopt a uniform version of consent:
Title IX defines consent as “Affirmative Consent,” meaning the “informed, affirmative, conscious, voluntary, and mutual agreement to engage in sexual activity,” as well as the recognition that “lack of protest,” “resistance,” and “silence” do not indicate consent.
However, schools are now allowed to choose their own definitions of consent, leaving space for vague and regressive definitions that hurt survivors.
7. In university settings, students must report to their Title IX coordinator to “officially” notify their school:
If a student reports to anyone but the Title IX coordinator (ex: RA, JA, coach, professor), this will not ensure that the university is officially “on notice.”
Therefore, if a student fails to report to the right individual, the school is not responsible for taking action.
Thank you for reading.
Stay informed, stay angry.
A Note: Because schools must come into compliance with these changes by August 14th, legally speaking, these new standards should not apply retroactively to ongoing cases.
If you or a loved one has experienced sexual violence, harassment, or assault, you are not alone.
Below are a few helpful resources:
National Sexual Assault Hotline – can also refer you to a local rape crisis center
1-800-656-HOPE (4673) 24/7 or
Online Counseling at https://ohl.rainn.org/online/
National Domestic Violence Hotline
1-800-799-7233
Text LOVEIS to 22522
LGBT NATIONAL HOTLINE
National Hotline (1-888-843-4564) or National Youth Talkline (1-800-246-7743)
Online Peer Support Chat (https://www.glbthotline.org/peer-chat.html) or Weekly Youth Chatrooms (https://www.glbthotline.org/youthchatrooms.html)
The Anti-Violence Project– serves folks who are LGBTQ
Hotline 212-714-1124 Bilingual 24/7
Just know that you are VALID and DESERVE JUSTICE. Never let anyone tell you otherwise.