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How the Biden Administration Should Recast Title IX Regulations

The U.S. Department of Education held public hearings June 7 to 11 to seek input on changes to the Title IX regulations. The agency requested comments on steps that can be taken to ensure that students who experience sexual harassment, including sexual violence, receive appropriate supports; schools provide fair processes for resolving complaints of sexual harassment, including sexual violence; and students who have experienced discrimination based on sexual orientation and gender identity have their legal rights fully met. FutureEd policy analyst Brooke LePage submitted the written comment below with suggestions on how to address these concerns. 

Thank you for the opportunity to comment on the existing Title IX rule and make suggestions for the next iteration.

I am writing as a policy analyst at FutureEd, an education policy center at Georgetown University’s McCourt School of Public Policy. I wrote my undergraduate honors thesis on Title IX.

I recommend the next rule do more to encourage students to report incidents of sexual harassment, including sexual assault, both to connect them with resources like campus counseling and so that schools have accurate data.

To achieve this, I recommend the next rule restore the Obama-era definition of sexual harassment, halt the use of cross-examinations for both the accused and accuser, restore the use of the “preponderance of evidence” standard of evidence, restore the ability for schools to be notified informally, and reaffirm institutions’ commitment under Title IX to protect LGBTQ+ students in line with Bostock v. Clayton County (2020). I also recommend the next Title IX rule keep the current rule’s flexibilities to conduct informal resolutions and virtual hearings.

Sexual assault survivors disproportionately do not report incidents of assault. A team of researchers from RTI International, the University of Cincinnati, and the University of North Carolina at Chapel Hill conducted an online survey of 6,800 undergraduate students at two large public universities for a report commissioned by the U.S. Department of Justice in 2007. It found 14 percent of undergraduate women experienced at least one sexual assault since entering college. But while 70 percent of those who experienced sexual assault that was physically forced reported telling a family member, friend, or roommate, the rate drops to 13 percent for reporting to law enforcement. Similarly 64 percent of those who experienced sexual assault while incapacitated told friends and family, but just 2 percent alerted law enforcement.

The participants cited a number of reasons for not reporting assaults, including not believing it was serious enough to report, being unclear that a crime was committed or that harm was intended, and not wanting anyone to know about the incident. Similarly, the Association of American Universities’ 2020 campus climate survey of almost 182,000 undergraduate and graduate students found that the most common reasons for students not reporting incidents were their belief that they could handle the situations themselves, that incidents were not serious enough to report, that they felt embarrassed and ashamed, or that it would be too emotionally difficult to report.

The report for the U.S. Department of Justice found two-thirds of those who experienced sexual assault actively tried avoiding the assailant on campus. But very few took other steps, including seeking psychological counseling or health care and pursuing action against the assailant like a restraining order or initiating disciplinary action with university officials.

Definition of Sexual Harassment

If left in place, the current rule’s narrow definition of sexual harassment, “unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal educational access,” will have a chilling effect on reporting. It leaves students, many of whom already question if their incident is serious enough to report, to interpret what a reasonable person would find severe, pervasive, and objectively offensive.

The next rule should restore the Obama-era definition of sexual harassment, “unwelcome conduct of a sexual nature” and specify that it includes dating violence, domestic violence, and stalking like the current rule. This broader definition will encourage more students to report incidents and get connected with resources.

Due Process

The current rule’s use of cross-examinations may also have a chilling effect on reporting rates. It allows for cross-examinations of the accused and accuser at live hearings conducted “directly, orally, and in real time by the party’s advisor of choice and never by a party personally.” In 2011 the Department of Education issued guidance strongly discouraging schools from using cross-examinations in Title IX hearings because it “may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.” To avoid retraumatizing students or chilling reporting rates because students fear being cross-examined, the next rule should ban the practice altogether.

The next rule should also restore the use of the “preponderance of evidence” standard (under which an incident more likely than not took place) in place of the stricter, “clear and convincing” (highly probable or reasonably certain it took place) standard. Obama-era guidance from the Department of Education required schools to use the lower standard to be consistent with other Office for Civil Rights fund termination administrative hearings. It also argued the higher standard of proof is only appropriate when assessing violations of civil rights laws. But school Title IX hearings assess whether students violated codes of conduct or student handbooks, not the law, and thus the lower standard should apply.

Similar to a narrowed definition of sexual harassment and the use of cross-examinations, a higher standard of evidence may also have a chilling effect on reporting rates. The “preponderance of evidence” standard should be codified in the new rule.

Definition of Schools Having “Actual Knowledge” of an Incident

The new rule should also codify the Obama-era definition of a school having “actual knowledge” of an incident. The new rule defines “actual knowledge” as “notice of sexual harassment or allegations of sexual harassment to a recipient’s Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient. But this definition leaves out the opportunity for informal ways that schools could be notified under the Obama-era guidance such as by members of the local community, social networking sites, or the media, which is often the only way students report. To increase reporting pathways and connect more students with resources and corrective measures, the new rule should use the Obama-era definition of a school having “actual knowledge” which is “if a reasonable employee knew, or in the exercise of reasonable care should have known” and allow for informal notice.

Discrimination Based on Sexual Orientation and Gender Identity

Last year, in Bostock v. Clayton County, Georgia, the U.S. Supreme Court ruled that “sex” includes LGBTQ+ people under Title VII of the Civil Rights Act of 1964. And while President Biden’s “Executive Order on Preventing and Combatting Discrimination on the Basis of Gender Identity or Sexual Orientation” and the Biden Justice Department’s memo both affirm the Supreme Court’s ruling also applies to Title IX, the next rule should codify it.

Informal Resolutions and Virtual Hearings

The next rule should keep the option for informal resolutions and virtual proceedings. The current rule allows schools to offer informal resolution options like mediation or restorative justice, except for allegations that an employee sexually harassed a student. In light of the coronavirus pandemic, the Department of Education under both Presidents Trump and Biden allowed for virtual proceedings. The next rule should continue to offer these options to students who may not want formal or in-person proceedings, a step that may improve reporting rates. I recommend the Department of Education conduct research to provide best practices for these options, like ensuring virtual hearings are not leaked.

If included in the next rule, I believe these recommendations will improve reporting rates, connect more students with campus counseling and other resources, and yield a clearer picture of a pervasive problem on the nation’s campuses.

Thank you for the opportunity to comment.

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