Last week, the United States Department of Education finalized new rules regarding sexual assault and harassment on campuses. These rules, which inform schools how to apply the 1972 Title IX law, will affect K-12 schools as well as college campuses. Blackburn Center stands with our state and national partner organizations in expressing our disappointment that these rules were enacted.
The rules make significant changes to the previous rules in several important ways. Some of these changes are positive or neutral, such as adding dating violence, domestic violence, and stalking to the definition of sexual harassment, and allowing representatives for students involved in sexual assault cases to question the students during live hearings. However, many may be damaging to victims and survivors of sexual assault and harassment. This includes:
Narrowing the definition of sexual harassment to include only misconduct that is "so severe, pervasive, and objectively offensive" that it effectively denies the victim access to the school's education programs;
Limiting the type of complaints that schools are required to investigate, including allowing schools to choose whether to investigate incidents that happen off-campus;
Holding schools accountable for failure to respond appropriately to student complaints only if they acted with “deliberate indifference.”
Taken together, these rules — which are contained in more than 2,000 pages — work to make it harder for victims and survivors of sexual violence to come forward. At the same time, the rules make it easier for educational institutions to avoid responsibility for ensuring the safety of their students.
As the Pennsylvania Coalition Against Rape (PCAR) explained when these rules were initially introduced for public comment in January 2019, the new rules will dilute Title IX as well as the protections previously in place for victims and survivors. For example, the updated definition of sexual harassment is far more limited than both the language used in the previous guidelines and how sexual harassment is defined by the Equal Employment Opportunity Commission (EEOC).
Under the new rules, to qualify as sexual harassment, the “unwelcome conduct” must be “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.” Importantly, the rules do not establish who determines what conduct is “objectively” offensive. They also set an impossibly high bar by stating that the harassment must effectively deny a victim equal access to educational programs or activities. A person can still suffer harm from sexual harassment even if they are not denied equal access. Taken together, these new two requirements may make students who experience this type of harm feel as though they must choose between their education and their safety.
These rules are troubling, and represent a significant step backwards in the struggle to ensure that victims and survivors of campus sexual violence are protected. Campus sexual assault is far too common in our country, with 23.1% of female undergraduate students and 5.4% of male undergraduate students experiencing rape of sexual assault through physical force, violence, or incapacitation. The majority (4 out of 5) victims of campus sexual assault never report the offense.
Other types of violence and abuse — such as dating violence and revenge porn — are also prevalent on campuses across the United States. The new rules may make it so that students cannot seek help from their school until the physical and/or emotional harm has become so significant that their educational opportunities have already suffered. These rules will only make it more difficult for victims and survivors to report — and may deny equal opportunity to education for millions of young women and men.
We join RALIANCE — an organization dedicated to ending sexual violence within one generation — in asking schools throughout the country to not erode protections for victims and survivors:
We call on schools and administrators to continue their leadership and action to create safer campus and school cultures where these behaviors are not tolerated – and to communicate this to students. Many institutions are already refusing to shirk their responsibility to students by developing and implementing their own high standards, and we hope others follow suit.
At Blackburn Center, we offer a range of resources for local colleges, universities, and technical schools, including assisting schools with their Title IX policies and providing training to employees who are responsible for responding to Title IX complaints. We will continue to work with area schools on how they can help anyone who has been affected by gender-based violence. We are also interested in working with our partners in K-12 schools to help them identify strategies for responding to, and offer resources to help compliance with, this new legislation. By coming together as a community, we can continue to support victims and survivors of all types of sexual violence.
If your life has been affected by sexual violence, domestic abuse, or any other type of violence or crime, we can help. Our hotline is open 24/7, and is free of charge and confidential. Reach out anytime at 1-888-832-2272.
Learn More: Sexual Assault