How schools will treat sexual misconduct is changing. Who's saying what about Title IX?
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The Biden administration is one step closer to reversing polarizing rules about how schools and colleges should handle accusations of sexual misconduct and gender-based discrimination crafted by former Education Secretary Betsy DeVos.
The Education Department will soon review more than 235,000 comments shared about its proposed replacement, which would expand the rights of student survivors of sexual assault and harassment and create protections for transgender and nonbinary students. The proposal drew tens of thousands of comments beyond what DeVos' original rule generated – about 124,000.
“It shows, No. 1, how important it is for us to have public comments, and to listen to what folks are saying. And for us, the Title IX rules reflect the value that every child belongs, every child’s education matters, and it’s our responsibility to provide inclusive environments in all of our schools,” Education Secretary Miguel Cardona told reporters earlier this month. “Inclusivity is something that we should not even question. All students belong. All students should be seen.”
Many of the comments that have poured in over two months – and were due Monday – are already available online, and thousands more will become public in the coming days. Ahead of their official publication, some advocates and critics of the Biden administration's proposed rule shared their input with USA TODAY.
What some of them say:
An advocacy group for student survivors of sexual assault praised the Biden administration for rolling back some of the DeVos rule, but Advocate for Youth’s Know Your IX wants Cardona to set a timeline for schools to conduct investigations and protect students from retaliation, tighten exemptions for religious institutions and more sharply define intimate partner violence.
Anecdotes from students and educators recount how the current rules damaged their education or well-being. “I have seen students go through the Title IX process and have been let down by the institution. They told me that they wished they never reported what happened to them,” one from a doctoral student and instructor said.
Many who oppose the proposed rules offered harsh feedback on the plan to ban all forms of sex discrimination and expand protections for the accused. Many commenters attacked LGBTQ+ youth.
Other comments revealed widespread confusion, fear and anger about something that is not part of the proposal: including transgender and nonbinary students in gender-specific sports.
What is Title IX? What are the rules now?
This year marks the 50th anniversary of Title IX, a part of federal law intended to protect students from sex discrimination in federally funded schools.
In 2020, DeVos led the charge in creating regulations about how the law is applied at K-12 schools and colleges and universities. The most contentious changes to Obama-era guidance was added protections for those accused of sexual assault. The current Title IX rule narrows the type of sexual assault or harassment allegations schools can investigate, requires schools to allow use of cross-examination of both parties to investigate claims and allows using a higher evidentiary standard to determine fault, which critics argue favors the accused.
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Advocates for student survivors of sexual misconduct argued the DeVos rule turned back years of protections while conservative groups applauded its expansion of due process.
The current regulation has been in place for two years while the Biden administration worked on a reversal. Advocates for student survivors have said it took too long to rewrite the DeVos rule and students can’t wait any longer for protection from discrimination.
How does Cardona want to rewrite the DeVos rule?
The Biden administration released a long list of proposed changes to the current rule in June. One of the most talked about aspects would change the law to ban all forms of sex discrimination, including based on sexual orientation, gender identity, sex characteristics, sex stereotypes and pregnancy. The proposal strengthens protections for student survivors of sexual assault and discrimination based on sex by lowering the bar for what is considered sexual harassment – thereby decreasing the threshold for what schools are required to investigate under the law, among other changes.
Conservatives and Republican lawmakers, many of whom praised the current rule, have attacked those parts of the proposed rule and others that would strengthen protections for alleged victims. They’ve argued the rule will impede students’ free speech if it moves forward as proposed.
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Comments address rights for LGBTQ students, sexual assault survivors and the accused
From those who support the new proposal: Survivor advocate groups that have long advocated for President Joe Biden to keep his promise to change the law – swiftly – commented mostly in favor of the changes, with a few exceptions. Some are disappointed Biden didn’t address transgender and non-binary student inclusion on sports teams, and others want the administration to beef up protections for survivors of sexual assault.
“We’re living at one of those seminal forks in the road for civil rights in gender equity,” said Maha Ibrahim, a lawyer for the national nonprofit Equal Rights Advocates. “It’s not just the 50th anniversary of Title IX. It’s our own moment of 1972. It’s 2022, and this rule is going to be a generation-defining moment for the future generations.”
The group urged its supporters to ask the Biden administration for additional protections for LGBTQ+ students, “trauma-informed training for all school employees involved in the Title IX process,” “protections for students who choose to speak publicly about sexual violence,” “harassment or gender discrimination they experienced” and “options for high school students to consult a school employee confidentially about an incident without mandating an official Title IX report.”
It also wants additional protections from discrimination for K-12 students given advocacy focuses on higher education.
Civil rights lawyer Alexandra Brodsky, who works for the national nonprofit Public Justice, argued that students – accusers and the accused – are paying for the current Title IX regulation. Previously, this wasn't a policy that would flip depending on the administration – until the changes took effect in 2020, she said.
Comments posted online from students and advocates for gender equity and student survivors largely show they want the proposal to move forward, and they want the rules to go even further.
“As a former student who relied on Title IX protections for my own gender identity status as a transgender individual, I believe this is a significant step to protect students and the like,” one comment says.
“My only suggestion would be to make it easier for those who experience this discrimination in their school system (public and private school districts and institutions) to report the harassment and discrimination and follow up on discrimination after the period of investigation," the comment continued. "I graduated high school from a small town public school in Arkansas and I was one of the few handfuls of students who were LGBTQ+. We did not feel protected enough.”
From those who support the current rule: Groups including Parents Defending Education and Moms for Liberty and Republican lawmakers have used the issue of including transgender and nonbinary youth in sports and added protections against sex discrimination in their messaging to encourage people to chime in with opposition to the proposal.
“From participation in sports competition to restrooms and locker rooms to overnight stays on field trips to compelled speech around pronouns, we wanted parents and the public to really grasp the implications of the proposed changes,” wrote Erika Sanzi, a director of outreach for Parents Defending Education.
Some of the public comments reflect those sentiments.
“For fifty years, Title IX has provided important protections and opportunities for women by prohibiting discrimination on the basis of sex. While parents across the country are demanding the rejection of “woke” policies, the Department of Education instead has chosen to hijack Title IX to force gender ideology on children without their parents’ knowledge or approval,” a comment posted Sunday reads.
“To have a mindless bureaucracy take away individual freedoms in order to conform to Woke policies is ludicrous. If it passes, it will create yet another major schism in American life. The South Carolina Federation of Republican Women will join with Moms for Liberty and other groups to fight this!” says another from a representative of the South Carolina Federation of Republican Women.
Along with concern about a redefining of the law, some of the comments posted online critique the reversal of the Trump administration’s expanded protections for the accused of sexual assault. Other emotional comments describe what they perceive as an attack on student free speech – and go as far as to say they’ll pull out of the public schools if the proposal moves forward.
“A large portion of our nation’s parents are seriously considering removal of their children from the public education system because of this latest attempt to indoctrinate our children and to cause them to make life-altering decisions that they are not mature enough to make,” one comment reads.
From students: Advocates for Youth’s Know Your IX, a group that empowers students to advocate an end to sexual violence and gender discrimination in their schools, used feedback from student listening sessions over the summer to write a collective comment. The group asked the department for further protections for LGBTQ+, pregnant and parenting students, students experiencing intimate partner violence and survivors of assault and harassment.
“We encourage the Department to require schools to designate one or more full time confidential employees that have the ability to educate their students on their rights, how to file a formal complaint, and how to access supportive measures following an incident of violence,” one of their demands in an overview of their full 43-page comment reads.
The group is one of many unhappy the Biden administration’s proposal doesn’t tackle the criteria for transgender and non-binary student participation in gender-specific sports teams – and is calling for a timeline for action.
Education Department leaders have said they will propose separate rules on the issue, though a department spokeswoman said there isn’t a timeline. Cardona said earlier this month he wants to ensure “there’s time for people to comment specifically on that.”
“This topic of athletics is one that, in my opinion, does require another round of input specific to athletics,” Cardona said. "But we also recognize that rushing through something that’s so important could create a situation where people feel like they’re not feeling heard or feel like they’re not given an opportunity to speak.”
What happens next?
Months could go by before any new rule takes effect. The proposal could remain as is modified or withdrawn based on the raft of comments.
“At this point,” Cardona said, “it’s important that we communicate what we believe the rule should be based on the comments and based on our thoughts at the department.”
This article originally appeared on USA TODAY: Title IX changes: 235,000 comment on proposed rules on sex assaults
