Title IX regulations, Part 2: Narrow new rules and racial bias

Bulletin: Education Secretary Betsy DeVos is preparing to remove civil rights protections for students of color, reported EducationPost.org, Dec. 13. (tinyurl.com/ybx9lghh) This can only ramp up racial bias in regard to Title IX as discussed in this article.

Education Secretary Betsy DeVos’ proposed revisions of Title IX regulations, covering sexual harassment, assault and abuse in K-12 schools and federally funded colleges and universities, were designed to make it easier for educational institutions to avoid dealing with such issues and harder for survivors to bring charges against perpetrators.

That turns the original intent of Title IX upside down. Title IX is a landmark civil rights law passed in the Education Amendments of 1972 to prohibit sex discrimination in federally funded education programs. That’s why DeVos’ revisions are adamantly opposed by survivors’ advocates, women’s and LGBTQ rights organizations, and educational and legal groups.

But the proposed revisions align perfectly with the misogynous stalking practices of DeVos’ boss. Predator-in-chief Donald Trump boasts about his sexist conquests, while current headlines delve into his payoffs silencing two mistresses.

DeVos was doing Trump’s bidding when revamping Title IX regulations, published Nov. 16, after consulting so-called “men’s rights” groups which promote the myth of “false accusations.” DeVos’ predecessor called such cases “exceedingly rare.”

According to the National Women’s Law Center, more than 3 million students will be sexually assaulted in 2018; less than 10 percent will report that to administrators. More than 1 in 5 women, nearly 1 in 18 men and nearly 1 in 4 transgender and gender-nonconforming students in college are sexually assaulted annually.

During college, 62 percent of women and 61 percent of men experience sexual harassment. During grades 7-12, 56 percent of girls and 40 percent of boys are sexually harassed. In reporting harassment, women and girls of color, students who are pregnant, parenting, LGBTQ or gender-nonconforming are more likely to be ignored, punished or labeled “promiscuous.”

Proposed changes in Title IX rules

Two major changes in the regulations would make it harder to convict an assailant. (Source: The National Women’s Law Center, “DeVos’s Proposed Changes to Title IX, Explained,” nwlc.org)

One change raises the standard for a case from “preponderance of evidence” to “clear and convincing evidence.” Preponderance is the standard used by federal courts in civil rights cases and all other types of student misconduct.

The other change radically upgrades sexual harassment from “unwelcome conduct of a sexual nature” to “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person access to the [institution’s] education program or activity.” This stringent definition would force a survivor to meet an extremely high test.

Strict definitions of evidence allow institutions to address only the worst cases of sexual harassment and abuse. This may force survivors to suffer more before they seek help. Institutional responsibility for sexual assault or harassment is also limited to “school-sponsored activity” and doesn’t include online communication, though much informal student interaction occurs through school-provided social media sites.

Previously students could report abuse to a trusted teacher, resident advisor or coach. Now, only a Title IX coordinator with “the authority to institute corrective measures” or K-12 teacher who has “actual knowledge” of abuse can take action. That would let Michigan State and Penn State, with perpetrators like Larry Nassar and Jerry Sandusky, respectively, off the hook.

The new rules automatically exempt religiously affiliated institutions from Title IX; currently they must file a formal request for exemption. Students may not know until it’s too late that they won’t be covered by rights conveyed in Title IX.

Institutions may offer students “supportive measures” to help them stay in school, such as counseling or modified work and class schedules, but only offers “mutual” restrictions on contact between parties. If an institution believes transferring a perpetrator from classes would pose an “unreasonable burden” on them, then the survivor must make changes, imposing a burden on them.

Institutions can now propose mediation, often used to resolve peer conflict — both sides take responsibility so they can compromise. But mediation is never appropriate for resolving sexual assault cases, which is why it’s previously been prohibited.

Will cross examination eliminate racial bias?

The most controversial aspect of the proposed regulations is allowing sexual assault survivors be cross-examined by an advisor for the accused, while an advisor for the survivor may cross-examine the accused. Such confrontation, even if the two sides are in different rooms or participate via videoconference, could intensify the survivor’s trauma, forcing them to drop the case or deterring them from initially reporting.

Lara Bazelon, a University of San Francisco law professor, contends in her Dec. 5 op-ed in the New York Times that rules of cross examination are needed. She argues this will counter the racial bias that permeates every aspect of U.S. society. Bazelon runs a pro bono clinic with her students to advocate for low-income students of color facing expulsion from allegations of sexual assault.

Noting that the Office of Civil Rights does not collect data on race in Title IX cases, she cites analysis of assault accusations at a private college in upstate New York where 4.2 percent of students were Black in 2012-13. There, 50 percent of sexual-violation accusations were against Black students, and 40 percent of Blacks went through the disciplinary process.

“We have long over-sexualized, over-criminalized and disproportionately punished black men,” writes Bazelon. “It should come as no surprise that, in a setting in which protections for the accused are greatly diminished, this shameful legacy persists.”

Bazelon contends that cross examination is in line with a Michigan court ruling last August which found that a public university “must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.”

But will cross examination be impartial? Will it go beyond “he said, she said”? Will due process promote fairness and justice?

That depends on who is administering each case and what biases they bring to the proceedings. The current Trump administration’s abysmal racist record hardly suggests that DeVos’ rules are being implemented to counter racism.

Voice your views before Feb. 28

The proposed changes to Title IX regulations are not final. There is a public comment period from Nov. 29 to Jan. 28. The Department of Education must incorporate all comments into the final rules.

The NWLC objected to the timing of the 60-day period, which included finals, holidays, school breaks, and sent the DoE a letter Nov. 26 co-signed by 123 organizations and 231 individuals requesting a 60-day extension. The letter urged the DoE to “schedule public hearings at school districts and college campuses throughout the country to encourage additional input from students, teachers, administrators and advocates” so “those most affected … are given the opportunity to engage and give the Department the benefit of a robust rule-making process.”

The Seattle Times reports the University of Washington has scheduled discussions on three campuses Jan. 14-17. Victor Balta, a UW administrator, was concerned about the “narrowed definition of sexual harassment,” which might create an “erosion of trust and confidence” in student views of UW. (Nov. 29)

Comments should be posted on regulations.gov under the title “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance” listed on Nov. 29.

The National Women’s Law Center suggests two ways to submit comments: 1) Send a prewritten statement (tinyurl.com/y993az264). 2) Write a personal comment using a customizable format (tinyurl.com/y92v5szu). It’s urgent to submit comments before the Feb. 28 deadline.

(PHOTO: Feministing)