Last fall, as students around the country were adjusting to the beginning of a school year in the midst of a pandemic, something else changed too: the rules for K-12 schools, colleges, and universities handling reports of sexual harassment and assault.
A new Trump administration regulation that went into effect last August raised the bar for what constitutes sexual harassment, allowed students who report harassment or assault to be directly cross-examined, and allowed schools to use a standard of evidence that many saw as more favorable to the accused. At the time, survivors and their advocates were deeply concerned that the new rules would discourage survivors from reporting and make it easier for schools to let harassment and assault slide.
Now President Biden has taken his first step toward reversing the rule, signing an executive order on Monday directing the Department of Education to review the issue. “It is the policy of my Administration that all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence,” the order, signed on International Women’s Day, states.
But reviewing and reversing the Trump administration rule could take months or even years. And in the meantime, advocates say the rule has already harmed survivors at schools across the country. For example, many are now barred from filing a formal complaint because they experienced harassment off campus, because their harasser has graduated, or because what they experienced does not meet the new, stricter standards set forth by the Trump administration, Sage Carson, manager of Know Your IX, a project combating sexual violence at schools and on college campuses, told Vox.
Others, meanwhile, are discouraged from reporting out of fear of having to undergo cross-examination, a traumatic prospect for many survivors. While hard data is scarce so far, survivor advocacy groups and school officials say they are receiving fewer reports of harassment and assault since the new rules went into effect, Shiwali Patel, director of Justice for Student Survivors and senior counsel at the National Women’s Law Center (NWLC), told Vox.
And advocates say the issue is too urgent to wait for a new rule to go through a time-consuming process — they’re calling on the Biden administration to take action now to make sure survivors are protected. “Because of how harmful this rule is, something has to be done in the interim,” Patel said. “Students cannot wait a year, a year and a half, two years, however long it takes while this rule is in effect.”
The Trump administration’s rule narrowed the definition of sexual harassment
The Trump administration rule governs the implementation of Title IX of the Education Amendments of 1972, which bans discrimination on the basis of sex in educational settings. Over the years, courts have ruled that sexual harassment and assault are forms of gender discrimination prohibited by Title IX. In 2011, the Obama administration released what is now known as the “Dear Colleague” letter, explaining how it would enforce Title IX.
The letter was not a new law — rather, it was guidance explaining how schools should comply with existing legislation. Among its core tenets was that in order to comply with Title IX, schools had to use a “preponderance of the evidence” standard when deciding sexual harassment and assault cases, meaning the accused would be found responsible if the evidence showed it was more likely than not that the violation occurred. Prior to the letter’s release, some schools had used a higher “clear and convincing” evidence standard, which put a greater burden on accusers to show that the accused had committed misconduct.
Many survivor advocates say that, while not perfect, the 2011 letter signaled a new seriousness about sexual assault at the federal level. In the years that followed, the issue got massive public attention, with many students holding their schools legally accountable for failing to keep them safe.
But accused students and the groups advocating on their behalf have long argued that the Obama-era guidance is unfair to them. DeVos was apparently sympathetic to this criticism, meeting in July 2017 with groups that support the rights of the accused, including the National Coalition for Men (NCFM), a men’s rights group. And in 2020, the Education Department finalized a rule that many saw as tipping the scales significantly in favor of the accused. Some of the biggest changes in the new rule included the following:
Schools are required to allow direct cross-examination of both parties at Title IX hearings. A lawyer or other representative of the accused is now allowed to directly cross-examine the reporting student. The rules do allow both students to sit in separate rooms and answer questions remotely, if either requests it.
Schools can use a higher evidentiary standard for sexual harassment and assault proceedings. Under the new rules, schools may use either the preponderance standard or the “clear and convincing” standard in sexual harassment and assault cases.
It’s harder to hold schools legally responsible for failing to address harassment and assault. Schools can only be held responsible for incidents that happen on school property or at school-sponsored events, not at most private, off-campus residences.
What counts as sexual harassment rises to a tougher standard. The 2011 guidelines defined sexual harassment as “unwelcome conduct of a sexual nature.” But the new rules set a stricter standard for what constitutes harassment, defining it as “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 result of these changes, many say, has been widespread confusion on school and college campuses — many of them already in turmoil after the pandemic shuttered buildings and sent classes and activities online.
The rule has caused confusion and discouraged reporting, many say
One immediate effect of the new rule was to narrow the circumstances in which people could seek relief under Title IX. For example, the rules preclude schools from responding to harassment that happens outside of official school programs or activities, Patel said. But “what does that mean for students who are participating in remote learning when all of their learning is happening at home?”
It’s not clear, for instance, how the rules apply to harassment that happens online while a student is attending class remotely. Overall, “the timing was just really terrible,” Patel said.
The change was enacted “during a time when schools need to prioritize their resources to ensure students can learn during remote learning, and now they have to completely change their procedures, undergo training, do an overhaul of their policies for addressing sexual harassment and assault,” Patel explained. “There’s a huge cost associated with that.”
Complainants now also have to show that they have already been denied access to their education as a result of the harassment — a new, higher bar that not everyone can meet.
Some schools began conducting two separate processes, Carson said — one formal process for reporting harassment that met the new demands of Title IX, and another, less formal process for experiences that did not meet the new standards. Princeton University, for example, instituted a “Title IX Sexual Harassment policy” for violations that met the standards, and a “University Sexual Misconduct policy” for situations that did not, according to Inside Higher Ed.
The dual processes were meant to give students who experienced harassment that fell outside the new Title IX rules at least some way to seek redress. But in some cases, the processes were completely different — and students often had no idea which one they’d be going through, because they didn’t know at the outset whether their experience “counted” under the new rules. “That was extremely confusing for students,” Carson said.
An already difficult situation was made worse by the fact that some schools didn’t clearly inform students and other community members of the new rule or of their policy changes to address it. “Some schools were very forthcoming about their change in policies,” Carson said, but there were “also a lot of schools that just tried to kind of silently kind of slide them in.”
And for those who were able to go through the official Title IX process, it became much more difficult. It wasn’t just that students reporting assault or harassment could now be cross-examined — people involved in collecting evidence would also have to be available for cross-examination, or that evidence would be inadmissible. “If a survivor went to a hospital and got a rape kit, the nurse that collected that kit would have to be cross-examined for them to be able to submit that into evidence,” Carson said.
All this has led to a drop in reports of sexual harassment and assault, advocates say. While there’s little comprehensive data yet, the NWLC is hearing about the drop both from survivor advocates on campus and from schools themselves, Patel said. Students now fear that “the schools would dismiss their complaint right off the bat,” or, if the school does investigate, that they will “be forced into potentially traumatic procedures like direct live cross-examination,” she explained.
The drop in reporting is especially concerning given that campus sexual assault was dramatically underreported already — according to one 2019 survey, just 15 percent of survivors at colleges and universities reported the experience to school authorities or went through any kind of official process. And that was before the new rules made those processes even harder.
Advocates say survivors need a fix — and soon
Now Biden is starting the process to change the rule. His Monday executive order directs the Education Department, within 100 days, to review the rule and consider suspending, revising, or rescinding it, or issuing a new rule to replace it.
But that process could take a long time, as new rules need to go through an official process, including a public notice-and-comment period. The Trump administration rule, for example, was first proposed in 2018, received thousands of public comments (most opposing the change), and only went into effect in 2020.
Advocates say survivors on campuses around the country don’t have that kind of time. But the Biden administration could take some actions in the interim while a new rule is being finalized. For example, it could decline to enforce the Trump administration rule, or could issue its own clarification or guidance on how schools should proceed while they wait for a new rule, Patel said. The Trump administration did something similar, issuing an interim question-and-answer document on Title IX in 2017 before the new rule was finalized.
Biden’s executive order appears to leave room for this kind of interim action, directing the Department of Education to “review existing guidance and issue new guidance as needed on the implementation” on the Trump administration rule “as soon as practicable.” (The White House has not yet responded to Vox’s request for comment on this point.)
Whatever happens with the new rule and any interim action, advocates are also asking the Biden administration to conduct a listening tour of students around the country to hear about their experiences with sexual assault and harassment in the pandemic and beyond. They’re hoping to see “a concerted effort to really meet with students,” especially since the Trump administration only met with student survivor groups once, Carson said.
Overall, survivor groups have criticized the Trump administration rules as poorly timed, ill-thought-out, and bad for schools and students alike. “Betsy DeVos touted these rules as providing more clarity,” Patel said, “when in actuality they provided more confusion.”
Now advocates are relying on the Biden administration to provide that clarity — and to do it soon, before more damage is done.