SAFE opposes proposed rule changes to Title IX

Written by Juliana Gonzales

The SAFE Alliance is a Central Texas nonprofit committed to providing safety, stability, and healing to anyone who has experienced violence and abuse, including survivors of sexual assault. To that end, we strongly oppose the proposed changes to Title IX because they are hurtful and unfair to survivors of sexual assault.

While Title IX of the Education Amendments of 1972 is historically best known for its impact on women’s access to sports, SAFE is focused on its importance regarding the response to sexual violence on college campuses.

Title IX recognizes that at its root, sexual violence is a mechanism based on gender by which students may be deterred from pursuing their education, and institutions have an ethical and legal responsibility to protect students from sexual violence and ensure access to education.

Title IX programs investigate reports of sexual assault, sexual harassment, relationship violence, domestic violence, and stalking. A Title IX complaint is completely separate and independent from the criminal justice process. At times, survivors will pursue both the Title IX process and report to law enforcement, but often survivors elect to pursue only one or the other.

In September 2017, the Department of Education rescinded previous federal guidance on Title IX, and in November 2018 posted new proposed rules for public comment. The changes proposed by the Department of Education appear to be focused on the rights of the accused in the Title IX process. Under the current rules, both the accuser and the accused have equal rights, but the proposed rules show deference to the accused, and discourage victims from filing a complaint.

Our primary concerns include the following changes to Title IX rules:

• Narrows the definition of sexual misconduct, raising the standard to “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access…” This definition excludes misconduct based in gender identity and sexual orientation, and is so extreme that a survivor would essentially have to have left school already before the misconduct meets this standard for impact.
• Ignores sexual violence that occurs off campus and outside of school programs. The proposed rule limits the scope of Title IX protections to a school’s “program or activity” in the United States. Most notably, students who experience sexual violence in locations such as off-campus housing or study abroad programs would no longer be able to seek Title IX intervention – even if the violence was perpetrated by another student or school staff and interferes with their access to education.
• Changes how survivors must report the complaint, removing the burden to investigate from the school unless the survivor submits a formal complaint directly to the Title IX Coordinator.
• Requires that the survivor submit to cross examination by the accused’s adviser, in a live hearing. The current process is managed by the investigator and often reaches resolution without a live hearing.
• Changes the survivor’s burden of evidence. Currently, like most violations of school codes of conduct, Title IX investigations make their determinations based on a “preponderance of the evidence” – in other words, it is more likely than not that the incident happened. This is appropriate and relevant as a level of proof needed to get the survivor the accommodations or support they may be requesting, such as changing classes or dorms. The proposed rules allow schools to rely on “clear and convincing evidence” for sexual misconduct.
• Allows schools to delay the Title IX investigation based on “concurrent law enforcement activity.” Law enforcement investigations take years, and could easily outlast a student’s time at the school. As a practical matter, under the proposed rules survivor will have to choose between the Title IX process or the criminal justice system.

The federal government implemented Title IX into federal regulations in 1975. Since then, presidents and their administrations have made changes through formal written federal guidance.

But in the more than four decades since Title IX was passed, the Department of Education has never made changes to the original law using the federal rulemaking process. If adopted, the changes proposed by this administration will represent the first ever changes to the federal regulations themselves, making Title IX incredibly difficult to update and revise as times change or we learn more about sexual violence on campuses.

If these changes are going to be the lasting law for the coming decades, it’s critical that we get these changes right and that the purpose of Title IX continues to be fulfilled so that students who experience sexual misconduct get the justice and healing they deserve.

Sincerely,

Juliana Gonzales, Senior Director of Sexual Assault Services, The SAFE Alliance