When US Secretary of Education Betsy Devos announced her intention to restructure Title IX back in November of 2018, it left the educational community nervous and civil rights advocates on alert. Part of the Education Amendments of 1972, Title IX states that:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
The proposed changes would redefine how school campuses respond to sexual assault claims and redefine sexual harassment and the conditions that would obligate a Title IX funding recipient to respond to sexual harassment claims. Devos stated that these changes were intended to strengthen legal protections for the accused.
When the mandatory public commenting period opened up for the proposed Title IX rule changes, the comments came in droves. In fact, complaints about portal and tech issues were brought to the attention of the Department of Education, which prompted them to reopen the comment period for only one day. In all, approximately 100,000 comments came in, and, as legally required, the department had to review each and every one as well as respond to any unique comments.
Public comments allow citizens to question the executive branch’s interpretation and regulation of laws and is proven to be more impactful then the circulation of a press release from an advocacy organization. In short, the influx of comments on the proposed Title IX changes should have signaled to Devos and her team that this was an important issue to many Americans.
Fast forward to February 2020—as news on emerging US infections of COVID-19 crept up, Devos continued to tout her plans to announce the final rules on Title IX. Public school systems, colleges, and universities scrambled to move entire education curriculums online while struggling to prepare for the eventual economic burdens the coronavirus would bring. (Even now, in May, as the country prepares to open up businesses and lift stay-at-home orders, the US education system is still overwhelmed with transitioning students online.) Amidst the hectic coronavirus response, Devos announced the final Title IX changes on May 6. The educational community learned it had only a little over a month to implement the entirety of the proposed Title IX changes. These changes include (but are not limited to) redefining sexual assault as a repeated action, removing funding recipient reporting requirements for off-campus and travel abroad sexual assault claims, and allowing a real time cross examination of the victim by a third party.
The backlash was immediate—and went far beyond the unprecedented turnaround time required of educational institutions and school systems. The changes were touted as an attempt to be “fairer and better protect accused students,” but civil rights advocates believe it is at the expense of sexual assault survivors. Of concern are the narrowed definition of sexual assault, suggesting it must happen more than once for a student to be allowed to report it as assault; the allowance of cross examination of both students by third party participants; and removing the requirement of colleges to address off-campus assault claims.
Civil rights advocates are responding publicly to these changes. The National Women’s Law Center has already announced that it will challenge this ruling in court. Just last week the ACLU filed a lawsuit against Devos over the Title IX rule changes, stating that “this new federal effort to weaken Title IX makes it more difficult for victims of sexual harassment or sexual assault to continue their educations and needlessly comes amid a global pandemic.”
Proponents of these rule changes, believe that colleges are not appropriate places to ensure due process and that sexual assault claims should be left to the police. However, colleges have a responsibility to their students to provide a safe and secure learning environment. By stating that colleges have no place in providing any due process is perplexing, as institutions of higher learning are structured around rules and guidelines that students are required to adhere to upon admission. By stating that educational systems shouldn’t act when their rules and guidelines are broken would defeat the purpose of creating rules and guidelines in the first place.
Betsy DeVos’s Title IX rule rewrite is an attack on the civil rights of the most vulnerable people in sexual assault cases. Just as with her funneling of millions in federal coronavirus relief to private religious schools and voucher schemes—money that was intended for public schools—her priorities here aren’t dubious, they’re disgraceful.