Title IX is a federal civil rights law designed to end discrimination and exclusion based on sex. The law is broad. It is most often referenced in sports but lately, the law has been under scrutiny because of its guidance around sexual harassment and assault.
In 2010, the Obama administration issued further guidance explaining the duty of schools to address sexual assaults… and that is the main part of Title IX that people have taken issue. Critics have accused that guidance of taking away due process for the accused.
Betsy DeVos and the Department of Education has tried to address this issue by drafting some new regulations.
Critics of the new plan have called foul. There are a number of issues that groups and activists have cited, but they mostly center around an institution’s responsibility to the victim. Some of the complaints levied against the plan:
- The definition of what constitutes harassment has been scaled back. Obama era guidelines defined harassment as “unwelcome conduct of a sexual nature.” Under the new regulations that would change to “Unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.”
People have taken issue with the wording. In particular “pervasive and objectively.” Does this mean a one-time offense doesn’t count? Who defines what is objectively offensive? Many would argue harassment by nature is somewhat subjective.
- Schools are only accountable if they have “actual knowledge” or if they were “deliberately indifferent” to assault or harassment.
Critics say this standard is much too high especially because in legal terms, “actual knowledge” typically means the exact right person has to know as opposed to anyone who could have taken action. Which differs from the way schools handle other situations, like suspected child abuse.
- Cross-examination of the accuser is allowed under the new regulation.
Critics claim this could traumatize or re-traumatize the victim.
- Schools don’t have to respond to any issues that don’t happen on campus or at a school-sponsored activity, even if the incident involves two students.
This has the largest implications for colleges as most students probably live off campus. If a female co-ed is raped at an off-campus party by another classmate, would the university be simply allowed to ignore it?
DeVos and the Department of Education claim their new regulations are simply meant to restore the rights of the accused, but others see it as protecting institutions from any liability.
The comment period on the proposed regulations is now open.