Recently, a new set of regulations surrounding Title IX were proposed. Title IX protects students from discrimination, sexual harassment and sexual violence which interfere with student’s safety, comfort and access to education and school life.
The protections found in Title IX proceedings have played an important role in many of Day One’s clients pathways towards safety and healing, providing an option for our clients to hold the person who has caused them harm accountable and receive much needed accommodations to continue with their education.
Day One would welcome regulations that would strengthen Title IX and provide more protections for survivors of sexual violence, however that much of the new rules in the proposed regulations will do the opposite, and will cause further trauma and harm to survivors. While several changes in this proposal would negatively impact Day One’s clients, most alarming among them is a change to the very definition of sexual harassment.
Changing the Definition of Sexual Harassment
For years the Department of Education has held that schools must investigate and respond to any form of sexual harassment that is sufficiently serious enough to interfere with or limit a student’s ability to participate in or benefit from a school’s program. The former definition ensured that schools would adequately respond to all forms of sexual harassment on campus.
Under the new proposed regulation sexual harassment has a much more narrow definition as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”
This limited definition creates a tremendously high burden and gives schools an easy out to wipe their hands clean of many cases of sexual harassment. Schools would only be required to act when the sexual violence or harassment completely denies a student access to education. The limited definition will have dire consequences for students.
At Day One, all of our clients are young people and many of them are students. We have seen how intimate partner and sexual violence can directly and incrementally impact a young person, there can be many warning signs that a young person is experiencing violence, however, by limiting the definition of the kinds of sexual harassment that schools must respond to, the new regulations increase young survivor’s chances of falling through the cracks. By the time the abuse is so severe as to completely deny a young survivor access to education it will likely be too late for the school to intervene in a meaningful way; that young person may already have been derailed from their educational goals and dreams. These new regulations could indirectly contribute to a young person’s experience of dating violence by making it easier for an abusive partner to slowly cut off their partner’s access to education knowing that the school will do nothing to intervene.
Similarly, the change in the definition of sexual harassment will lead to decreased reporting of sexual harassment of all kinds. Survivors already rarely report sexual violence to their schools as a result of not knowing how or who to report the harassment to on campus. Limiting the definition of sexual harassment sends a message to all students that only the most egregious forms of sexual harassment will be taken seriously by their schools and thus students will feel that there is no point in reporting sexual harassment even when it is negatively affecting their educational outcomes.
Instead of requiring that sexual harassment be so severe as to deny a student access to an educational program or activity, Day One would urge the U.S. Department of Education to continue the guidance of the 2011 Dear Colleague Letter (DCL) that held that a school must investigate any conduct that is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program. The DCL definition recognized and reinforced that a school should never allow any sexual harassment to interfere with a student’s education.
The Department of Education is entrusted with the important goal of providing high-quality education to all students. These proposed regulations roll back protections for students who have experienced myriad forms of sexual harassment. The new regulations will harm all students; any student can be the victim of sexual harassment and under the new guidelines schools will have less responsibility and less incentive to prevent, intervene, and respond to sexual harassment. For the reasons detailed above, the U.S. Department of Education should immediately withdraw its current proposal and dedicate its efforts to advancing policies that ensure equal access to education for all students, including students who experience sexual harassment.
The deadline to submit comments on these new regulations is January 30th. To comment and to learn more on this topic, visit: https://act.nwlc.org/onlineactions/Ti1imLF7_kSzrPNMHD4ANQ2