In early May, the U.S Department of Education (DOE) released its Final Title IX Rule, a set of documents outlining regulations concerning campus sexual harassment and sexual assault. The Rule is a finalization of regulations that were drafted in 2018 by U.S. Secretary of Education Betsy DeVos and the DOE, and officially went into effect on Aug. 14, 2020.
The regulations were issued by the DOE’s Office of Civil Rights, which undertook a year and a half notice-and-comment process, and are now federally enforceable laws. By contrast, regulations issued under the Obama administration in 2011 and 2014, known as the Dear Colleague Letter, were classified as guidance and did not carry the force and effect of law behind them. DeVos had previously invalidated the Dear Colleague Letter in 2017, calling for an overhaul to campus sexual assault policy.
Once the new law was released in May, the SLU administration convened a fifteen person Title IX Policy Review Committee. This group worked through the updated regulations and integrated them into our Interim Title IX Sexual Harassment Policy, which is currently pending approval from President Pestello’s cabinet and is expected to become official policy this semester.
DeVos has been a strong proponent of the updated regulations, arguing that they protect the due process of both the accuser and the accused, and that the Final Rule is “clear, predictable and effective at ensuring schools have the tools they need to address incidents of sexual harassment in their programs and activities.” By contrast, updated rules has drawn fierce criticism from activists and sexual assault survivors for failing to protect the rights of sexual assault survivors. According to the organization Know Your IX, Devos’ new rule “drastically decreases schools’ obligations to prevent, respond to and remedy sexual harassment and assault.
Reviewing the updated rules, especially in comparison to the Obama administration’s Dear Colleague guidance, there is a definitive trend of increased protections for those accused of sexual assault.
For instance, where the Obama administration’s guidelines set the standard of evidence at “a preponderance of the evidence” in determining guilt, the new regulations allow Title IX investigations to opt for a “clear and convincing standard” instead. The “clear and convincing” standard is a more rigorous standard to meet than the “preponderance of evidence” standard, meaning that in many cases, victims will be required to provide more evidence than might otherwise have been expected. That said, SLU’s Title IX policy will continue to use the preponderance of the evidence standard.
Another heavily criticized rule change allows cross examination of parties and witnesses to the incident by student advisors and lawyers. Sexual assault advocates say that live cross-examination will likely lead to re-traumatization of victims and act as a deterrent for reporting sexual misconduct.
The definiton of sexual harassment has also been narrowed in comparison to previous guidance. It is now defined as “any unwelcome conduct that a reasonable person would find so severe, pervasive and objectively offensive that it denies a person equal educational access.” However, sexual assault, dating violence, domestic violence and stalking remain outside of the “severe, pervasive, and objectively offensive” requirement.
Critics of the updated Title IX rules have also taken issue with DeVos’ collaboration with several controversial men’s rights groups in the drafting of the new regulations. In an article published in The Nation back in August, Helene Barthelemy, a researcher for the Southern Poverty Law Center, detailed that in 2017, after DeVos had scrapped the Dear Colleague regulations and called for a complete overhaul of Title IX regulations, she held a summit at the Department of Education Building, where a number of groups crusading against a “crisis of false rape allegations” against male college students were present to offer advice and feedback.
These groups included the National Coalition for Men Carolinas (NFMC), a men’s rights group that argues that men have “become second-class citizens” and are dedicated to “ensuring fair and equitable treatment for all mankind” and Families Advocating for Campus Equality (FACE), an organization founded by three mothers who say their sons were falsely accused of sexual assault. Also present was Stop Abusive and Violent Environments (SAVE), a group with similarly paranoid views of a percieved crisis of false sexual assault allegations.
Not only were these groups present at the summit, it was later revealed by a Freedom of Information Act (FOIA) request that these men’s rights groups were deeply involved in the process of writing these new Title IX regulations beginning in May of 2017, several months before the Dear Colleague letter was officially scrapped.
Nearly 3,000 pages of emails were shared with The Nation through the FOIA request, revealing that the Department of Education partnered with these men’s rights groups at numerous junctures in the drafting of the new regulations, including instances where members of the DOE’s Office of Civil Rights participated in conference calls with staffers of the groups. These groups also offered legal advice to the Department of Education.
In short, the very same groups that spend their time pushing discredited campus rape statistics and demeaning the credibility of survivors of sexual assault, actively participated in writing the campus sexual assault regulations that now carry the weight of law at SLU and on college campuses across the country.
It is no surprise, then, that these new rules seem intent on stacking the deck against sexual assault survivors. In addition to the controversial evidence and cross examination changes, the new changes mean that universities are no longer obligated to investigate the majority of sexual assaults that occur off-campus (as Helene Barthelemy points out in her article, it is estimated that 80 percent of college students live off campus). This is because colleges are only required to act on complaints of misconduct that occur within university programs, meaning that an incident between two students in Greek Life affiliated housing would require an investigation, but one in a non-university owned apartment would not. SLU moved to combat this by rewriting the Student Handbook this summer to include instances of sexual assault, dating/domestic violence and stalking that occur off-campus and therefore are no longer covered under Title IX.
After the Department of Education released the new Title IX rule in May, the American Civil Liberties Union (ACLU) filed a lawsuit against the DOE, arguing that the new rule will “slash schools’ obligations to respond to reports of sexual harassment and assault” and estimated that the rule will lead to a 32 percent decrease in reports of sexual harassment and assault. The ACLU lawsuit is still ongoing and has been joined by several other prominent lawsuits, including by the organization Democracy Forward.
Beyond the content of the new rule, there was also concern about the viability of implementing a new Title IX policy in the midst of a global pandemic. Schools were given just four months to implement the policy, even while universities across the country are dealing with major budget shortfalls and myriad other logistical and administrative challenges. Once President Pestello’s cabinet approves the Interim Title IX Sexual Harassment Policy, it will become official SLU policy. To read this policy and learn more about Title IX at SLU, visit https://www.slu.edu/about/safety/sexual-assault-resources/index.php