Three Reasons Why Betsy DeVos’s Draft Title IX Rules Would Hurt Survivors

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By Elizabeth Tang, National Women’s Law Center

Betsy DeVos is at it again. On August 29, 2018, the New York Times published a leaked draftof the Department of Education’s proposed Title IX regulations on sexual harassment and violence. Remarkably, DeVos’s draft regulations are even more dangerous than her already-terrible September 2017 guidance, which gave special rights to alleged harassers and rapists, rolled back protections for survivors, and created contradictory and confusing rules for schools.

You might be wondering, Is it even possible to further eviscerate Title IX? (Relatedly, is it ever necessary to own 10 yachts?) The answer to both questions is, unfortunately, yes.

DeVos’s draft rules would actually encourage schools to ignore survivors when they ask for help—effectively, to aid and abet the Larry Nassars and Jerry Sanduskys of the world. If the draft rules go into effect, they would encourage schools to be complicit in sexual harassment and violence. Here’s how:

  1. Only the worst cases of sexual harassment would count as “sexual harassment.”

For almost 40 years, federal law has defined sexual harassment as any unwelcome conduct of a sexual nature. This means that when students (or employees) experience sexual harassment, they don’t have to suffer in silence or wait for it to become “bad enough” to report. Sexual harassment should never be allowed to continue unchecked.

But under DeVos’s new dystopian definition, sexual harassment wouldn’t count as “sexual harassment” unless it’s so severe and pervasive that it “denies” a student’s access to education—i.e., the student has been forced to drop out of a class or out of school altogether. That means students would be forced to endure repeated and escalating levels of abuse without being able to ask their schools for help. By the time their school would be legally required to intervene, it might be too late—the student might already be ineligible for an important AP course, disqualified from a dream college, or derailed from graduating altogether.

  1. Almost no school employees would be responsible for addressing sexual harassment.

If you tell your math teacher, track coach, or college RA that you’ve been sexually harassed or assaulted, you’d expect them to do something about it. But under DeVos’s draft rule, the vast majority of school employees would no longer have to do anything—because they don’t have the “authority to institute corrective measures.”

That means that in order to get any help at all, K-12 students would have to go to their teacher, assistant principal, principal, or district superintendent. College students would have to go to their dean of student affairs or university president. Imagine being 8 years old and not being able to tell an adult you trust–like a teacher’s aide, cafeteria worker, or playground supervisor–about your assault. Imagine being 18 years old and being forced to talk about your rape with a complete stranger, instead of a TA you trust or your RA who lives down the hall.

DeVos’s draft rule would also absolve the worst Title IX offenders of legal liability. Colleges like Michigan State and Penn State would have had no responsibility to stop Larry Nassar and Jerry Sandusky—just because their victims reported their experiences to school employees who didn’t have “authority to institute corrective measures.”

  1. Only a small fraction of online and off-campus sexual harassment would be covered by Title IX.

In the year of our Lorde (and I mean Audre Lorde) 2018, no one actually believes that students live discrete, compartmentalized lives at school and outside of school. Students learn and interact with one another all the time—in the classroom, online, and off campus. But DeVos’s draft rule would allow schools to ignore all off-campus harassment or violence that happens outside of a school-sponsored program, even if the student is forced to see their harasser or rapist on campus every day.

That means if a middle school student is being sexually harassed by her classmates on Instagram or Snapchat, her school would no longer need to do anything—even if she’s too afraid to show up to class anymore. If a college student is raped at an off-campus frat party or in off-campus student housing, her college wouldn’t need to investigate—even if she sees her rapist every day in their class, dining hall, or residential hallway. Not to mention, community colleges would be almost completely off the hook, since none of their students live on campus.

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DeVos’s draft rules are a complete abdication of the Department’s responsibility to keep students safe. But don’t just take it from me—take it from students at schools where her draft rules are already in place. Take it from Francesca, a high school survivor and NWLC client, who was told that seeing her attempted rapist at school every day wasn’t bad enough or “hostile” enough to count as ‘sexual harassment.” Take it from DarbiAnne Goodwin, a high school survivor and NWLC client, who was raped off campus and then pushed into an inferior “alternative school” because her school refused to investigate off-campus sexual harassment. Take it from Sage Carson, a college survivor and current manager of Know Your IX, who dropped her Title IX complaint because her school used some of the same traumatizing investigation procedures that DeVos is proposing to make national.

Here’s how you can stop Betsy DeVos. And it just takes 10 minutes. I know you have 10 minutes. 

DeVos’s draft rules are horrible, but thankfully, they’re just a draft. We still have the opportunity to stop Betsy DeVos through a rulemaking process called notice and comment, where anyone—and I mean anyone—can write directly to DeVos to tell her what you think about Title IX.

The notice and comment process is probably going to start in September 2018. Here’s what you can do to prepare:

  1. Take 3 minutes to read this primer on your current Title IX rights
  2. Take 5 minutes to watch this video on the notice and comment process
  3. Take 2 minutes to learn about common rape myths and how to be an ally to survivors.

That’s it! You’re ready to join the fight. And if you’re in the mood, feel free to tweet at her:

For once in your life, do your ***** job, Betsy DeVos.

Update: The Title IX regulations referenced below were officially published on November 16, 2018.

Originally posted here.

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