Dear Betsy: Don’t overhaul Title IX during a global pandemic

May 5, 2020, 8:24 p.m.

*This article contains references to sexual violence and abuse that may be distressing to readers.

In the midst of adjusting to online classes, helping sick family members and navigating the uncertainty of a global pandemic, students will now have to grapple with one more burden — an overhaul of rights for survivors of sexual violence. Secretary of Education Betsy DeVos is poised to finalize regulations drastically undermining students’ rights under Title IX, the federal statute that guarantees access to education free from sex-based discrimination.

Title IX governs how schools are expected to respond to sexual violence within their communities. In 2011, the Obama administration issued a Dear Colleague letter, which set clear standards for schools’ obligations to investigate reports of sexual violence leveled against their community members. Unfortunately, these regulations were rescinded by the Trump administration in 2017. Betsy DeVos then proposed new regulations with several troubling provisions, including the following: 

Limiting the scope of schools’ responsibilities. The proposed regulations only require that schools respond to incidents occurring within their “program or activity.” This effectively means administrators would be able to ignore off-campus sexual violence and harassment, including at conferences, bars, non-campus housing and personal online communication.

Direct cross-examination. Under the former rules, schools have used “indirect” cross-examination — during a hearing, both parties may submit questions for each other in writing to be asked by an impartial third party. However, DeVos’ changes would require that schools use “direct” cross-examination, with the parties’ representatives posing the questions themselves. This system would create an unnecessarily hostile — and potentially re-traumatizing — environment. 

Narrow definition of sexual harassment. Sexual harassment was previously defined as “unwelcome conduct of a sexual nature.” The proposed guidance narrows this definition, requiring that conduct be “severe, pervasive, and objectively offensive” before it can be considered sexual harassment. This definition is overly restrictive: Recurring unwelcome interactions that individually are not considered “severe” or “objectively offensive” would not qualify as sexual harassment even if they are repeated. As a result, many instances of online sexual harassment, for example, might not be actionable under the new Title IX rules.

All told, these proposed regulations would decrease survivors’ access to justice and discourage reporting of sexual violence. The Department of Education’s official public comment process received 124,196 comments from individuals and organizations across the country (including one comment signed by 1,159 members of the Stanford community). Despite thousands of students, survivors and advocates speaking out against these changes, the Department of Education has moved forward with the new regulations, which could be released in the coming days.

DeVos’ proposed revisions would be unwelcome any time, but proceeding with these rule changes during the current COVID-19 emergency is particularly troubling. Schools are already struggling to adapt to an online setting while continuing to investigate reports of sexual violence and harassment. Stanford, for instance, has yet to share information about how investigations, hearings and resolutions will continue online during the pandemic. Requiring schools to comply with new regulations while also figuring out how to conduct these processes online will further strain schools’ already-limited resources and cause confusion for students.

In addition, online and off-campus behavior may not fall into schools’ jurisdictions under the new regulations. This is extremely troubling given that the vast majority of interaction between students now occurs online and/or off the Farm.

Students across the country are already under significant stress. Many have been pushed out of housing and forced to move to uncertain or unsafe accommodations. We are adapting to new academic, financial and familial circumstances. The Department of Education should focus on how to support students, not further jeopardize our safety. 

Students are not alone in recognizing the danger of changing Title IX during a pandemic. Eighteen state attorneys general signed a letter asking the Department of Education to suspend its rulemaking process while schools respond to the COVID crisis: “the burden placed on schools would be untenable and ultimately counterproductive to student safety.” Forty-six members of Congress also released a similar letter. Despite these requests, the Department of Education is reportedly still planning release the regulations this week — perhaps as early as this Wednesday.

To make our voices heard, students can participate in Know Your IX’s online rally against the new regulations using the hashtag #DearBetsy (digital toolkit here). You can also contact your Congressional representatives and ask them to speak out against releasing the new Title IX rule during this pandemic.

As students and members of the Stanford community, we need to make it clear to Betsy DeVos and the Department of Education: A global pandemic is not the time to overhaul Title IX. The proposed regulations will hurt students and should not be instituted at any time, let alone during the COVID-19 emergency.

Krithika Iyer ’21

Maia Brockbank ’21

Julia Paris ’21

ASSU Co-Directors of Sexual Violence Prevention

Contact Krithika Iyer at ksiyer ‘at’, Maia Brockbank at mbrock ‘at’, and Julia Paris at jgparis ‘at’

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