Victim Protections Diminished by Department of Education’s Proposed Title IX Guidelines
By Shauna Friedman
The Department of Education just proposed guidelines to the civil rights laws that will impact the way schools respond to allegations of sexual misconduct. Title IX is the specific provision that the proposed guidelines target. Title IX is the federal civil rights law created to ensure gender equality in education. An important component of ensuring gender equality in education means providing safe environments for learning for all students that are free from sexual assault and sexual harassment.
In order to promote safe environments for students that are free from sexual assault and sexual harassment, schools must aim to capitalize on three important goals: 1) Provide access for victims to report their cases of sexual misconduct; 2) Be given assurance that their reports will be taken seriously; and 3) Take appropriate action to prevent future incidents.
However, instead of promoting these goals, the new proposed guidelines work to silently unravel Title IX’s intended protections. They cut off access for victims to report their cases of sexual misconduct by narrowing the definition of “sexual misconduct” and limiting a school’s responsibility based on the location of the assault or harassment. They fail to provide assurance to students that their reports will be taken seriously by forcing mediation rather than investigation. Finally, they do not encourage schools to take appropriate action to prevent future incidents by allowing for a heightened standard of evidence to prove guilt.
- (Not) Providing Access for Victims to Report Their Cases of Sexual Misconduct
The threshold for permitting victims report their cases of sexual misconduct depends extensively on the definition of “sexual misconduct”. The proposed guidelines narrow the definition by limiting qualified cases to only those that are “so severe, pervasive, and objectively offensive that if effectively denies a person equal access to the recipient’s education program or activity.” This is a drastic change from the current definition which provides protection for any “unwelcome conduct of a sexual nature.” The new definition effectively limits the number of potentially reportable cases.
Similarly, the new proposed guidelines limit a school’s responsibility for cases of sexual misconduct to only those that occur “within its ‘education program or activity.’” This means that all off-campus housing and off-campus events are blacklisted from reaping the protections of Title IX. This limitation again works to effectively limit the number of potentially reportable cases.
Narrowing the definition of “sexual misconduct” and limiting a school’s responsibility based on the location of the assault or harassment does NOT function to provide access for victims to report their cases of sexual misconduct.
- (Not) Giving Assurance to Students That Their Reports Will Be Taken Seriously
Providing assurance that reports will be taken seriously is an indispensable incentive to encourage victims to come forward and identify their perpetrator. The new proposed guidelines dismantle this incentive by forcing the victim to participate in mediation in attempt to work it out themselves rather than institute a meaningful investigation. This does NOT give assurance to students that their reports will be taken seriously.
- (Not) Encouraging Schools to Take Appropriate Action to Prevent Future Incidents
Finally, if a school does engage in an investigation into an allegation of sexual misconduct, the standard at which they must judge guilt can be outcome determinative. Now, the standard is the same as what it is for most civil lawsuits, the preponderance of the evidence. This standard requires a finding that the perpetrator is more likely than not (more than 50%) guilty of the alleged sexual misconduct. The proposed guidelines, however, give schools the option of either using this standard, or opting for a higher standard of proof, clear and convincing evidence. Clear and convincing evidence makes it more difficult for a perpetrator to be found to guilty because it requires evidence that is highly and substantially more likely to be true than untrue. This does NOT encourage schools to take appropriate action to prevent future incidents.
All in all, the Department of Education’s proposed Title IX guidelines threaten to unravel the laws’ intended protections by sabotaging the requisite goals for promoting safe school environments. Before the new guidelines go into effect, the department is required to consider all comments from the public. The public has been taking advantage of this opportunity and is encouraged to continue to do so.
Though the new guidelines would have no binding effect on Title IX cases brought in federal court, they would undoubtedly be used by educational institutions to argue that even lax protections of the rights of sexual abuse victims should immunize schools from liability. This will make the role of Plaintiffs’ lawyers both more difficult and more important as they help students combat widespread gender discrimination and abuse in schools.
The legal team at Williams Cedar regularly handle claims brought under Title IX. If you believe that you or a family member has been harmed by gender discrimination or sexual abuse at school, we’d be happy to consult with you. Call us in Pennsylvania at 215-557-0099, in New Jersey at 856-470-9777, or submit an online inquiry.