ERA Rejects Trump Admin’s Proposed Sexual Assault Rules that Promote Rape Culture on Campus

September 14. 2019
Jess Eagle

Note: As of January, 30, 2019, the public comment period is closed.

What you need to know about the Trump Administration’s absurd campus sexual assault regulations on Title IX

On Nov. 16, the U.S. Department of Education officially proposed new sexual misconduct regulations to Title IX that would significantly harm students across the country by making it much harder for them to report sexual assault and harassment.

The proposed regulations are even worse than what was expected based on a draft that was leaked in August. Today’s announced proposal directly attacks equality in education, attempts to undo decades of civil rights progress, and disproportionately harms students who are at highest risk of sexual violence: women of color and LGBTQI students.

“The only duty of the Secretary of Education is to defend the hard-earned civil right of students to learn. Betsy DeVos and the Trump Administration have offended that duty today with their proposed regulations,” said Executive Director Noreen Farrell. “Rather than ensure that students are safe enough to learn, their proposal suggests that once again this Administration is committed to protecting the perpetrators rather than the victims of sexual violence. They’re encouraging schools to turn a blind eye and shirk their duties under federal law to prevent sexual assault. We need fewer Larry Nassers, not more.”

TITLE IX CHANGES

If put into effect, Betsy DeVos’s new proposed regulations would:

• require schools to hold court-style hearings for most sexual misconduct complaints, rather than conducting the traditional Title IX investigations,

• allow victims to be directly cross-examined by the assailant’s “advisor,” or hired-gun attorney, explicitly allowing questions “challenging credibility” of the survivor,

• allow the cross-examiner to bring up “evidence” about the survivor’s previous “sexual behavior or predisposition” with the assailant to “prove consent,”

• allow schools to refuse to investigate incidents that happen at an off-campus party or bar, where a huge portion of college sexual assaults occur,

• make survivors produce “clear and convincing” evidence that they were raped or assaulted — a higher standard of evidence than required by any other student complaint,

• allow schools to refuse to investigate online sexual harassment, even if a student must see their harasser every day at school,

• dramatically reduce liability for schools, allowing them to turn a blind eye to sexual assault or harassment happening under their noses, and shielding schools from responsibility if they ignore or cover up sexual misconduct,

• drastically reduce the number of school employees responsible for addressing or reporting sexual harassment, even if it’s happening right in front of them or they’re directly told about it,

• encourage schools to reinstate an antiquated mediation process rather than investigating, pushing survivors to “ work it out” with their rapists,

• narrows the definition of sexual harassment, requiring schools to investigate only the most “serious forms of harassment and assault,” and only act when the sexual violence or harassment completely denies a student access to education, forcing students to endure repeated and escalating levels of abuse without being able to ask their schools for help.

WHAT DOES IT MEAN?

If allowed to stand, the proposed regulations would:

• encourage schools to ignore students who ask for help, taking us back to a time when sexual harassment and violence were swept under the rug,

• traumatize survivors just for reporting, often requiring them to face their rapist in mediation, meet a nearly impossible evidentiary standard, and be cross-examined by an advisor or partial attorney,

• create many more opportunities for assailants to intimidate survivors into silence,

• indicate that undefined prior “sexual behavior” is a green light for future sexual assault,

• gravely impact the 87% of college students who live off-campus,

• encourage schools to be complicit in harassment and violence— in effect, to aid and abet the Larry Nassars and Jerry Sanduskys of the world,

• make schools less safe for everyone, and

• put the burden entirely on the survivor to prove they were raped, with the higher evidence standard and the rule discouraging school investigations. The “clear and convincing” evidence standard is not used for any other type of student complaints. This puts an additional unfair burden on survivors of sexual violence that no other students must face.

The bottom line is, intention aside, these regulations will make it easier for rapists and serial harassers to get away with sexual assault and harassment, and will block survivors from seeking recourse after being assaulted or harassed. At a time when our country’s colleges and universities are experiencing an epidemic of campus sexual assaults, this Administration is sending a clear message to survivors: shut up.

The results will push survivors out of schools and protect sexual predators, putting every other student at risk. Meanwhile, students who are sexually assaulted will no longer be guaranteed equal access to education, losing that right — the very right Title IX was created to protect — because they were raped.

FIGHT BACK

Here’s the good news: There are multiple ways to fight back:

• Comment — The comment period is closed, as of Jan. 29, 2019

The Department of Education is required to accept public input on proposed regulations through a “notice and comment” process, and it’s required to address this input when it issues final regulations.

This means we have a say in the final product. If the Department does not sufficiently respond to public input, or if the regulation itself is inconsistent with Title IX, the regulation can be struck down in court. So submitting public comments — lots of them — is an important and effective way for each of us to make a difference.

The 60-day public comment period opened Nov. 28. Speak out with us.

When the proposed rule was published in the Federal Register, the Department initiated a 60- day public notice and comment period, during which survivors, their families, advocates, educators, and others will have the chance to weigh in on the proposed changes.

Join our Title IX alert list, and we’ll help you prepare the most effective comment possible tell to make sure your voice is heard. We especially need students, survivors, educators, and lawyers to help with this effort.

If we all speak out, they can’t ignore us. Commenting is a concrete way each of us can make a difference. Let’s tell Betsy DeVos and the Trump Administration: We believe survivors.

• Support our lawsuit against DeVos

Equal Rights Advocates, alongside our ally organizations, is suing Betsy DeVos and the Department of Education over Title IX changes that harm student survivors. We’re challenging the discriminatory animosity that motivated the Administration’s first effort to issue unlawful Title IX policies. The necessity of our case is vindicated by the fact that many of the items in today’s draft regulations are identical to the ones we filed suit over earlier this year. Support our lawsuit.