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It’s On Us and End Rape On Campus Virtual Town Hall on Title IX Rule Changes

May 19, 2020 Title IX is a federal civil rights law that was enacted in 1972 and states that discrimination on the basis of sex is illegal in the United States of America. This law has since been amended and expanded to include crimes in the Clery Act and the Violence Against Women Act. Past

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Title IX is a federal civil rights law that was enacted in 1972 and states that discrimination on the basis of sex is illegal in the United States of America. This law has since been amended and expanded to include crimes in the Clery Act and the Violence Against Women Act. Past administrations also released guidance to ensure schools are providing students and survivors of sexual violence with proper support and response options that ensure they continue to have access to educational programs. On December 21, 2018, Secretary of Education Betsy DeVos released new guidelines for Title IX. The proposed rules gutted previous guidance from the Obama administration and included new guidelines that could make it even harder for survivors to report or receive supportive services. Unfortunately, two weeks ago today, these damaging new rules were officially published on the federal register and schools have just a few months to change their policies to abide by these new rules.

On Friday May 8, 2020, It’s On Us and End Rape On Campus held a virtual town hall with over 1,200 students from around the country, national organizations, and direct service providers, and we have put the top 10 most frequently asked questions from that town hall here with our answers and any information we have. We will continue to provide information to you as we receive it and are working to announce a virtual action in response to these dangerous new rules.

Top 10 Questions and Answers

Q: Can we see the entire 2000 page document? How do we access it?

A: Yes, HERE is a link to the document itself. For any visual learners, THIS is also a helpful webinar on the new rules.

Q: Will the new rules apply retroactively to cases opened before August 14, 2020?

A: Legally, cases that have already begun should not be affected by these new rules; however, whether the Department of Education will hold schools accountable for these new rules before August 14, 2020 is still unclear. Our assumption, based only on our policy analysis of the newly published rules, is that cases that were open prior to the August 14 deadline may essentially be affected by the new rules, but for cases that have been closed and with no pending appeals, the Title IX regs will not be retroactively applied to these cases. (Page 1869, Paragraph 2)

Q: Who would conduct cross examinations?

A: Cross examination is conducted by the opposing party’s advisor of choice. This means that a survivor cannot be questioned by the person who harmed them, but they can be questioned by that person’s best friend, coach, or parent. (Page 996, Paragraph 1)

Q: How does this affect students studying abroad? Are schools considered responsible for addressing these cases? If not responsible, are schools allowed to choose to address reports from study abroad?

A: The new rules specify that Title IX ONLY requires a school to respond to an assault that happens “in the United States”. This does not include study abroad programs, even if it is through an official school program, such as an international campus of a U.S. based school.

According to the Department of Education, sexual assault that occurs during a study abroad program doesn’t apply to Title IX specifically because it happened outside of the United States and they do not want to create a conflict with another country’s laws. However, according to the Department, “there is no prohibition of a school deciding to include more robust policies against sexual harassment for study abroad programs.” If schools decide to do this, it will be legally outside the realm of Title IX, and have no oversight by the Department of Education. (Page 1575, Paragraph 2)

Q: With the narrowed definition of sexual harassment in the new rules, are schools obligated to investigate instances of sexual harassment that occur online?

A: The new rules do not specifically mention online harassment. The circumstances of online harassment must be analyzed to determine if the event where the respondent exercised “substantial control” over the victim/survivor occurred “in a school program or activity.” For example, online harassment would qualify if a student was harassing another student during a class, but not if they did it on their personal device in their off campus apartment. (Page 644, Paragraph 1)

Q: How will schools determine if harassment is “so severe, pervasive and objectively offensive”?

A: All crimes in the Violence Against Women Act (VAWA) are included in the Title IX rules as they are defined in the VAWA statute (sexual assault, dating violence, domestic violence, stalking). The new Title IX rules define “severe, pervasive, and objectively offensive” as any crimes on the basis of sex that a “reasonable person” would find to “effectively deny a person equal access to an educational program or activity.” The rules do not define who a “reasonable person” is. (Page 488, Paragraph 2)

Q: Lots of questions about reporting / mandating reporter/ing / top official / responsible employee / responsibility of title ix coordinator

A: All schools are responsible for hiring at least one Title IX coordinator. A Title IX Coordinator is defined as at least one employee that is designated to coordinate the efforts to comply with a school’s responsibilities under Title IX. All Title IX Coordinators have the authority to institute corrective measures on behalf of a school (Page 2009, Paragraph 7). All schools must display the Title IX coordinator’s information on their website and in employee/student handbooks. This must include an option for both verbal and written reports. The Title IX Coordinator is responsible for responding to a report once the school has “actual knowledge” of the assault. Actual knowledge is defined in the rule as any information given to or attained by a Title IX Coordinator. Once there is actual knowledge, the school is responsible for a “prompt” response. This includes reaching out to the person alleging sexual harassment and confidentially discussing available resources and options for support. Options include receiving supportive measures from school or choosing to file a formal complaint. (Page 1605, Paragraph 1)

Q: Does the new rule change how campus public safety responds to incidents?

A: Based on our review, there are no specific changes to how campus safety responds; however, the narrowed definition of sexual harassment and the increased responsibility of the Title IX coordinator, may affect the way campus safety handles reports.

Q: Do schools have the right to define consent?

A: Yes they do. According to the new rules, each school can define consent so that it is in line with their state laws; however, it must also follow definitions listed in the Jean Clery Act, which defines sexual assault as, “Any sexual act directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent.” (Page 363, Paragraph 1)

Q: Do the new rules change prevention education requirements?

A: They do not provide any specifications on prevention requirements or instruction on sexual consent. They do however, require ALL persons who are involved in responding to these crimes to receive training. See Violence Against Women Act Amendments to Clery Act for more specific prevention language.

Q: What can states do and how can state policies mitigate loopholes to the new Title IX changes?

A: We can encourage our state legislators to write and sign into law, policies that provide robust and comprehensive definitions of consent and requirements for prevention education or response to these crimes. For example, on June 28, 2019, Governor Tom Wolf signed into law Act 16 of 2019 (Act 16) which added Article XX-J to the Pennsylvania Public School Code of 1949. Building on the It’s On Us PA initiative, this law includes statutory requirements for addressing sexual assault at postsecondary institutions in Pennsylvania that award an associate degree or higher. Learn more about the sexual violence policy, PDE’s model policy, and the anonymous online reporting system here.

Q: Can colleges and universities choose to take stricter action?

A: Yes, as long as their policies do not interfere with the language of the new Title IX rules, they can institute more detailed policies.

1 | United States, Department of Education, Office of Civil Rights. “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiveing Federal Financial Assistance,” 34 C.F.R. Part 106, 2020.