Recent Title IX Proposals from Education Department

January 16, 2019

Title IX was enacted in 1972 to ban discrimination based on sex in those schools receiving Federal financial assistance (20 U.S.C. 1681(a)). For a party to prevail in a Title IX case, the school must have actual knowledge of the discrimination and be deliberately indifferent to it.

In addition, the harassment must be so severe and pervasive that it effectively denies the aggrieved student(s) access to an education.

Addressing Sexual Harassment in Schools

A relatively recent application of Title IX has been to address gender-based discrimination in schools, including sexual harassment and assault, harassment based on gender identity, and harassment based on non-conformance with stereotypical gender norms.

Victims are often intimidated into silence. They may do poorly in school or even drop out if the stress of maintaining that silence is too great.

Part of that intimidation arises from the investigative process. Victims weigh the pain of remaining silent against the prospect of having to prove the incident and face their attacker; they often choose silence.

There are statistical signs that failing to address sexual violence, including harassment, hurts school performance. On the other hand, when efforts are made to prevent and punish violations, measures of performance show improved individual and school-wide academic outcomes.

The Obama Administration Approach

The Obama administration sought to create a process more supportive of victims. A 2011 “Dear Colleagues Letter” sent to school administrations nationwide urged them to better investigate reports of sexual violence. The guidance specifically directed schools to evaluate cases using the “preponderance of the evidence” standard of proof, which is used to determine other civil rights violations, including discrimination. This is a lesser standard than the “beyond a reasonable doubt” standard used in criminal proceedings.

Advocates for victims approved of the change and believed they would help more victims of sexual violence come forward. Scholars were more equivocal, with some arguing the letter represented administrative overreaching, and others raising concerns that the accused were being unfairly disadvantaged.

Some school administrators complained the procedures were too complex and burdensome.

The Trump Administration Approach

Education Secretary DeVos has recently rescinded the guidance letter and proposed new rules to replace it. The rules would essentially eliminate prior Obama administration efforts to support victims.

Changes include:

• Redefine sexual harassment that schools have to investigate from unwelcome conduct of a sexual nature to 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.
• Changing the standard of proof so that schools would no longer be required to use the lesser standard. Schools would be given the option to require evidence of guilt beyond a reasonable doubt in order to find in favor of the accuser.
• Changing the investigative proceeding from one that discouraged schools from directly cross-examining the accuser, to one that requires schools to allow direct cross-examination.
• Changing the investigation from a formal one to allowing mediation and other informal procedures to address reports of sexual harassment.

Education law lawyers at The MacMain Leinhauser provide skilled representation to public and private entities regarding Title IX compliance. We offer legal advice, along with practical guidance on preparing compliant policies and training programs. Contact us at 484-318-7106 or complete our online form for more information. Our West Chester, Pennsylvania office serves clients in the greater Philadelphia area.