WHAT YOU SHOULD KNOW ABOUT TITLE IX
Updated as of October 27, 2022
What is the current status of Title IX?
On September 12, 2022, End Rape On Campus submitted our comment to Regulations.gov. The comment highlighted the importance of centering student survivors at the intersections of their identities, including, but not limited to students who attend Historically Black Colleges and Universities, Tribal-, Hispanic-, and Rural- serving institutions, community colleges, pregnant and parenting students, immigrant students, and LGBTQ+ students and the compounding factors that they often face.
Below are a few excerpts of our concerns and recommendations from our comment:
1. Allowing the implementation of universal mandatory reporting will undoubtedly cause harm, perpetuate retraumatization, and increase pre-existing distrust in campus administrators, staff, faculty, and other designated authorities.
- We recommend “instead of implementing universal mandatory reporting, the rule should designate both confidential resources and resources/employees that are mandated to report. The delineation of these two groups must be explicit and students must be repeatedly informed which resources are confidential. Confidential resources should be truly confidential and exempt from Clery reporting requirements. Survivors deserve the ability to share their stories, learn about available resources, and make choices about their own lives without losing control of what happens to them next. When survivors of interpersonal violence work with confidential advocates, they are more likely to formally report, less likely to be treated negatively, and less likely to experience additional distress and retraumatization. Universal mandatory reporting eliminates the possibility of the important process of survivors exercising agency and regaining control.”
2. The lack of clear timeframe for investigations will continue to allow impermissible delays.
- We recommend that “with a clear rule about the length of time that investigations should take, survivors could check in with Title IX coordinators, investigators, and hearing officers and have a rough timeline to use to help get information about their case. Yet, without a clear timeframe, cases can be drawn out indefinitely, affecting all parties involved. This creates a situation where schools can regularly tell survivors that they are “working” on the case or that the case needs to be delayed. Survivors have no mechanism within the Title IX guidelines to hold their institutions accountable to conduct a timely investigation. Cases could be delayed until complainants or respondents graduate, transfer to another institution, or involuntarily withdraw from a class or drop out completely. This will effectively give schools an easy way to do nothing and provide no remedy for a complainant while still saying that action is underway, shielding schools from legal liability at great risk to complainants’ education.”
3. No revisions or considerations were made around permitting schools to claim a religious exemption.
- “Seeing that the current administration’s proposed regulations make no reference to possible considerations for change, we wish to reassert and underscore the importance of reinstating the former requirement of a formal application for religious exemption…The proposed rule gives schools a free pass to discriminate and block access to civil rights protections for transgender and queer students. The Department’s no-notice religious exemption is an escape hatch—schools claim the exemption after a report and evade any responsibility. This provision should be eliminated, and accountability for religious exemptions should remain in the form of a formal application for an exemption. This tried and true method allows students a modicum of accountability while not infringing on the religious freedom of schools or unfairly burdening recipients with needless paperwork.”
4. Schools being able to choose which standard of evidence to investigate sexual harassment may enable schools to impose a more burdensome standard in sexual assault cases.
- We recommend the preponderance standard of evidence be used across the board. “Preponderance has been the recommended standard for use in all student discipline cases for nearly thirty years. If the preponderance standard were used for a plagiarism investigation and a clear and convincing standard used for a Title IX investigation, the result would be that it is easier for a student to get removed from school for plagiarism than it is for violence against another student. This is inconsistent and unfair. The use of the clear and convincing standard would be inconsistent with the enforcement of similar civil rights legislation. The burden imposed in adjudicating other civil rights complaints including Title II and Title VII has historically been the preponderance standard. The burden imposed in adjudicating claims not related to sexual violence under Title IX has always been preponderance. There is no reason that complainants seeking relief for this certain class of violations under this particular civil rights statute should face greater burdens than complainants under other civil rights laws.”
On June 23, 2022, the 50th Anniversary of Title IX, The U.S. Department of Education released its newly proposed Title IX rules on sexual harassment and other sex-based discrimination that restore Title IX’s purpose. The proposed changes would undo harmful rules put in place by former Secretary of Education, Betsy DeVos, of the Trump Administration. On the same day, End Rape On Campus and It’s On Us’ Title IX campaign went live. The purpose of the campaign is to spread awareness of the importance of restoring Title IX to its original purpose by mobilizing students, survivors, and advocates and signing on to their forthcoming letter to the Department of Education.
On June 27, 2022, End Rape On Campus and It’s on Us teamed up to host their third Town Hall on Title IX to give an overview of the substantive changes of the proposed Title IX rule. These include:
- Returning to a more inclusive definition of sexual harassment and clarifying Title IX prohibits sex-based discrimination, which includes discrimination against LGBTQIA+ students and pregnant and parenting students.
- Reasserting that Title IX applies to any incident of sexual misconduct that creates a hostile environment and is unwelcome.
- Restore protections for students who experience harassment while they are off-campus and expand the purview of Title IX to include students who experience harassment while studying abroad.
- Eliminating the requirement for live hearings which previously dissuaded many students from reporting a Title IX complaint.
- Preventing retaliation against students who report sexual harassment or assault by their peers or their university.
- Clearly defining protections for students from marginalized communities, ensuring Title IX coordinators can adequately accommodate students with disabilities, and creating protections for transgender students, and pregnant and parenting students.
The proposed Title IX rule does not reverse harmful changes made in 2020 by the Trump administration to the Title IX religious exemptions that allowed more schools to discriminate in the name of religion and with less transparency.
Unfortunately, the 2020 rules largely remain in effect until a new rule is finalized. Because of how long the rulemaking process takes, students will likely not see these new changes go into effect until at least another school year at the earliest.
The proposed draft of the Title IX regulations is currently undergoing regulatory review by The Office of Information and Regulatory Affairs and the Office of Management and Budget.
On December 10, 2021, the Department of Education announced within their Unified Agenda that the newly proposed Title IX regulations will be published in April 2022. During this time, the NPRM process will begin. Unfortunately, what this means is that the current Betsy DeVos-era Title IX regulations are still in effect and schools can continue to discriminate against student survivors.
On October 6, 2021, EROC, along with It’s on Us, Know Your IX, Every Voice Coalition, National Women’s Law Center, Girls, Inc., Equal Rights Advocates, delivered a petition with over 50,000 signatures of students, parents, advocates, and lawmakers, to urging the U.S. Department of Education to restore student survivors’ rights and make college campuses safer.
The petition called on the U.S. Department of Education to:
- Issue proposed changes to the Title IX rule by October, 2021. The Department of Education must act swiftly to ensure that no survivor is pushed out of school because of sexual violence and harassment.
- Issue a Nonenforcement Directive on portions of DeVos’ Title IX rule, indicating that, while we wait for a new rule, the Department will not enforce the sections of DeVos’ Title IX rule that (among other things):
- Forbid schools from following state or local laws addressing sexual violence in education that provide greater protections for student survivors if they conflict with the DeVos Title IX rule;
- Force survivors into unfair and hostile investigations and hearings which only apply to victims of sexual violence, but not to other forms of campus misconduct and violence; and
- Require schools to dismiss Title IX complaints based on the location of the harassment, because the complainant has not suffered enough, or because the complainat was already pushed out by the sexual harassment/violence.
- Ensure that survivors can file complaints with the Office for Civil Rights when their rights are violated. In 2018, DeVos’s Department of Education altered the case processing manual to limit the number of students who could seek help from the Office for Civil Rights. Currently, students have only 180 days from the FIRST instance of alleged discrimination to file a complaint. Instead, complainants should be allowed to file within 180 days from the most recent instance of discrimination instead of from the first instance.
We met with Acting Assistant Secretary of Education, Suzanne Goldberg and Deputy Secretary of Education, Cindy Marten and other representatives of the Office of Civile Rights of the U.S. Department of Education to present our demands and ask them to act now.
Unfortunately, the meeting resulted in the representatives refusing to meet our demands, nor offering any proactive notion to at least consider our demands, reconvene amongst themselves to offer any resolution or concession. They reiterated their timeline of issuing an NPRM process in May 2022. Students and advocates left disappointed, frustrated, and disconnected given the Biden Administration’s seemingly committed stance on sexual and gender-based violence.
Two days following this meeting, on October 8, 2021, Acting Assistant Secretary Suzanne Golberg wrote a statement via the Office of Civil Rights Blog on attempting to reinforce their commitment to addressing sexual violence in educational environments. You can read the blog here.
April – June 2021
On April 6, 2021, the Department of Education’s Office of Civil Rights’ (OCR) announced their launch of a comprehensive review of Title IX regulations per President Biden’s March 8 Executive Order.
In their letter to students, educators, and other stakeholders, they declare that “ensuring equal access to education for all students–from pre-K through elementary and secondary schools and postsecondary institutions–is at the heart of our mission”.
OCR also acknowledges how students, especially those at the intersections of their identities, are often subjected to multiple forms of discrimination at higher rates than their counterparts. As part of their comprehensive review, the following actions will be taken:
- A public hearing from June 7-11 to gather feedback from students, parents, teachers, faculty members, school staff, administrators, and other stakeholders. You can read EROC’s full testimony here.
- The issuance of a question-and-answer document to provide clarity on how the OCR interprets schools’ existing obligations under the 2020 amendments, including how schools respond to reports of sexual harassment. You can read the Questions and Answers on Title IX Regulations on Sexual Harassment issued in July 2021 here.
- Following the public hearing and review of the Title IX regulations, OCR will implement a formal process of a notice of proposed rule-making (NPRM) in the Federal Register. During this period, individuals, organizations, schools, and other members of the public will have the opportunity to share their insights on the proposed changes.
On March 8, 2021, President Biden signs an “Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity“.
The Department released a resolution agreement with a university. What happened and what does this mean?
On May 17, 2022, the U.S. Department of Education’s Office of Civil Rights announced a resolution of sexual harassment investigation of San Juan Bautista School of Medicine.
The resolution agreement is the first time in at least four years that the Department of Education has investigated the backlog of sexual assault cases. The investigation found that San Juan Bautista School of Medicine failed to investigate allegations of sexual assault, in violation of Title IX, and its procedures for resolving sexual harassment complaints did not meet the requirements of the Department’s Title IX regulation. As a result, the school has agreed to reimburse the student survivor for tuition costs, revise its policies and procedures, provide training to staff members and more.
What Executive Order did President Biden sign?
On March 8, 2021, President Biden signed an Executive Order On Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual orientation or Gender Identity.
Under this order, within the next 100 days, Secretary of Education Miguel Cardona, in consultation with the Attorney General, shall
- Review all existing regulations, orders, guidance documents, policies, and any other similar agency actions that are or may be inconsistent with the policy set forth in section 1 of the order and provide the findings to the Director of the Office of Management and Budget.
- Issue new guidance as needed on the implementation of the rule as soon as practicable, appropriate, and consistent with the applicable law.
- Authorize to revise, rescind, or issue new rule set forth in section 1 of this order as soon as practicable and as appropriate and consistent with applicable law, and may issue such requests for information as would facilitate doing so.
If I’m a student of a marginalized identity such as race, gender, disability, national origin, sexual orientation and gender identity, will the Department take this into consideration in their review of Title IX?
Absolutely! The Department of Education acknowledges students experience multiple forms of discrimination and that students at the intersections of their identities, including race, gender, disability, sexual orientation, gender identity are subjected to sexual violence at higher rates than their counterparts.
In fact, the Executive Order prioritizes all forms of discrimination including race, disability, national origin, sexual orientation and gender identity. The aim of the Executive Order and the Department of Education is to ensure that educational institutions are providing support for students as well as to ensure that their school procedures are fair and equitable.
What happened under the previous Administration?
On September 22, 2017, Secretary Betsy DeVos rescinded two important guidance documents that outlined school’s responsibilities under Title IX: the 2011 Dear Colleague Letter and the 2014 Questions and Answers on Title IX and Sexual Violence. These were replaced with interim guidance, 2017 Q&A on Campus Sexual Misconduct. The 2017 interim guidance was the start of the rolling back of protections for student survivors. It effectively eliminated the U.S. Department of Education’s Office of Civil Rights’ oversight and enforcement of the requirements outlined in the rescinded guidance.
In 2018, when the Department of Education released the proposed rule on how campuses should handle cases of sexual violence, it caused an uproar amongst students, survivors, advocacy organizations, and higher education administrators. We lead and mobilized students, survivors, and advocates to engaged in a series of grassroots campaigns, including #StopBetsy and most notably, #HandsOffIX, in partnership with Know Your IX. During the notice-and-comment period, where 2019, more than 125,000 public comments — a majority opposing the then-proposed rules were submitted to the federal register.
On May 7, 2020, during the midst of the COVID-19 pandemic, Secretary of Education Betsy DeVos released the newly revised changes to the Title IX regulations in a 2000+ page document. Elementary, secondary, and higher education institutions were forced to comply with the new regulation changes by August 14, 2020.
The issuance of the rule during a public health crisis serves as a subterfuge to undermine student survivors rights. Students nationwide have had their academic year disrupted, and access to services stymied due to the physical closure of campuses. The decision to release the rule changes now is adding unnecessary trauma to survivors and students.
It is also placing an unfair burden on school administrators who are already struggling to determine how to safely reopen their campuses for the fall semester. Requiring schools to come into compliance with the Title IX rule changes in addition to these challenges before the start of next academic year is ignorant.
So DeVos’ Title IX rule is still in effect?
Yes. It’s true. The DeVos’ Title IX rule is still in effect. The Department of Education is going by the book with respect to policy and procedures, unlike under the Trump administration. The Office of Civil Rights within the Department of ED is responsible for enforcing Title IX’s protections. By undergoing correct and appropriate procedures to determine what changes and/or additions are necessary to fulfill the Executive Order.
However, following the meeting on October 6, 2021 to urge the U.S. Department of Education to take an active and swift stance on the current impact of the rise in the Double Red Zone, and the exacerbation of sexual assaults that have occurred during the students’ return to campus in the Fall of 2021, students’ rights and protections are placed on a backburner and schools have the ability to continue to discriminate against student survivors seeking accountability, transparency, and justice.
What are my rights under Title IX?
- Gain an education that is free from violence.
- Be informed of what your school’s policies on sexual assault and harassment.
- Report the sexual assault or harassment to your school’s official.
- Report to your campus or local law enforcement agency.
- Speak to anyone about your experience.
- Not inform the assailant or harasser in advance of your report.
- Participate in a Title IX investigation –whether its for you or someone else.
- Seek out other civil remedies.
- Seek support from mental health and legal professionals.
- Decide when you wish to report or not. The choice is yours.
What should I expect from my college/university?
First, and foremost, your college should be prioritizing your needs and ensuring that you receive an education that is free from violence.
When a student has experienced a hostile environment such sexual assault or sexual harassment, schools must stop the discrimination, prevent its recurrence, and address its effects. This includes retaliation from other students, school administrators, or faculty.
Schools must proactively prevent and respond to claims of sexual harassment, sexual violence, and other forms of gender-based violence, retaliation, discrimination, and must have an impartial and prompt process for investigating and adjudicating reported cases. An informal process, such as mediation, may be appropriate for some cases of sexual harassment, but in cases involving allegations of sexual assault, mediation is not appropriate even on a voluntary basis. If the survivor (also referred to commonly as complainant) is resolving a case informally, they must be notified of the right to end the informal process at any time and begin the formal process. Retaliation from either the school, the faculty, or your peers is also prohibited.
Furthermore, regardless of whether a report has been filed to the school or police, an institution must provide the survivor with living or academic accommodations and the right to notify law enforcement. Schools must also notify survivors of options for interim measures, such as no contact orders and changes to transportation, dining, and working situations.
Under the Clery Act, another federal law that intersects with Title IX, a bill of rights for survivors of campus sexual assault requires colleges and universities — but not K-12 — to do the following:
- Notify survivors of counseling resources.
- Notify survivors of the option to report a case to either the school, law enforcement, or both.
- Provide academic or living accommodations, such as changing dorms, classes, etc. Schools are discouraged from burdening the survivor, instead of the perpetrator, with the responsibility to change their circumstances.
- To be notified of the final outcome of a disciplinary proceeding.
You can learn more about your rights under the Clery Act here.
Colleges, universities, and school districts should provide survivors with a prompt, adequate, and impartial investigation should they chose to make a report. This includes the following:
- Provide a timeframe of all important stages of the grievance process.
- Allow both parties choose their advisor of choice, who can adequately present their case with appropriate witnesses and relevant evidence.
- Resolve the case based on a preponderance of evidence standard, e.g., was it more likely than not that the sexual violence or harassment occurred?
- Simultaneously notify both parties in writing of the outcome and any disciplinary sanctions imposed.
- Provide the same opportunity to present a case as the other part(ies). E.g., if one person is allowed to appeal the outcome of the investigation or sanction or is allowed to have a lawyer, the other part(ies) must have the same opportunity.
Where can I go for legal assistance for my current Title IX investigation?
If you or someone you know was sexually assaulted or sexually harassed and you are currently in or considering filing a Title IX report and you believe you need legal assistance, here are a couple of options for you:
- Equal Rights Advocates’s ENOUGH Legal Advocate – This is a free, confidential attorney who will walk you through the Title IX process.
- National Women’s Law Center + TIME’S UP Legal Defense Fund’s Legal Network – This is a free service that will provide you with up to 3 attorneys in your area that can help you.
What are EROC’s top priorities of this Title IX review?
Within the next 100 days, Secretary Cardona, has the opportunity to set a new tone and establish a solid pathway towards a new policy that is survivor-centered. Here’s our top three on what we want to see from this administration:
- Acknowledge the trauma that student survivors had to endure during the previous administration and are currently facing today, and rebuild trust with and amongst student survivors.
- Listen to student survivors, including those from historically marginalized communities, by conducting a series of intersectional, trauma-informed, and accessible listening sessions.
- Rescind the Title IX regulations and issue interim guidance that includes accommodations and supportive measures that addresses students’ unique needs.
Where can I find information from the Department of Education/Office of Civil Rights directly?
The Office of Civil Rights of the Department of Education has a blog, instituted by Suzanne Goldberg, Acting Assistant Secretary of the Office of Civil Rights. You can find the blog here.
How can I be involved in the Public Hearing and NPRM?
The Department of Education will be announcing very soon when and how students, parents, teachers, etc., can be share their insights on the existing Title IX rule. End Rape On Campus and our field partners will be amplifying how to get involved. Please visit our Action Events page for current happenings. In the meantime, we encourage you to sign up for our EROC Action Alerts.
Title IX: In Brief
A breakdown of Title IX Regulations under the Trump Administration.Title IX in Brief
Calls to Action
Here are several ways that you can take action to hold your school account, including a comprehensive checklist on how to address sexual harassment for campus administrators.
EROC Full Testimony during Title IX Public Hearings
Here is the full testimony given by EROC Executive Director, Kenyora Parham on June 11, 2021.