Five Questions to Ask About Title IX and Sexual Assault

The Trump Administration’s rewriting of rules governing how schools handle sexual assault allegations is generating plenty of comment, potential changes to school enforcement activities, threats of lawsuits, and headlines.

Because it combines the combustible elements of emotion and law, journalists covering the evolution of Title IX – the federal law that bans sex discrimination in educational settings – should be especially careful to dig deep into details of the new enforcement policies as well as explore potential ripple effects.

As education reporters write about incidents of sexual discrimination or assault in schools or universities, here are five questions to keep in mind:

What, exactly, are schools and school officials required to do?

The wording of the federal anti-discrimination law is short: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” But the rules and regulations governing how to enforce that law are long, complicated, and often change with the political winds.

On May 6, 2020, U.S. Secretary of Education Betsy DeVos announced revisions to the Title IX rules governing how schools investigate allegations of campus sexual assault that would undo many Obama-era practices. She added new protections for victims such as including stalking and dating violence as examples of incidents that must be investigated, but also gave the accused more rights to defend themselves.

As Laura Meckler reported in The Washington Post: “The rules will give universities and colleges a clear but controversial road map for handling emotionally charged conflicts that often pit one student against another.”

To make sure you’re describing the new rules correctly, check with legal experts and Title IX practitioners such as those at the national association of Title IX coordinators, officers and investigators (ATIXA). EWA has collected a  full list of reputable resources here.

When are schools planning to change their procedures?

Meckler suggests asking how administrators plan to make the required changes by the August 16 deadline set by DeVos, especially in light of the COVID-19 pandemic. Since the new rules are likely to be challenged in court, will schools hit the pause button on revising their own policies until a judge upholds them?

​The American Council of Education, the largest trade organization of colleges, charged on Wednesday that the deadline was unreasonable: “The Department of Education is not living in the real world,” ACE charged, adding: “As a result of the pandemic, virtually every college and university in the country is closed. Choosing this moment to impose the most complex and challenging regulations the agency has ever issued reflects appallingly poor judgment.”

But on Wednesday, federal officials said administrators have had plenty of time to get ready for what was already in the pipeline and that they will begin enforcing the new regulations on Aug. 16.

How does Title IX play out in K-12 schools?

Allegations involving harassment and sexual assault at the postsecondary level have gotten the lion’s share of media attention. But the case law is dominated by incidents involving younger students, who are also protected by Title IX, said Tyler Kingkade, a national investigative reporter with NBC News.

And the rules affecting K-12 schools differ in some cases from those for higher education. K-12 schools will not be expected to have live hearings when allegations are made, for example. In addition, in a call with reporters, DeVos said the new rules clarify that if a student makes an allegation to any school employee — including, say, bus drivers or cafeteria workers, that will serve as having notified the entire school, thus triggering required actions.

Kingkade suggests asking how these new rules will be carried out on a practical level at local schools. K-12 schools are also going to have a tough time switching gears on Title IX policies given the current challenges of the coronavirus pandemic. How will they train support staff about the rules? And what are the responsibilities of contractors, such as bus drivers, who work with minor students but are not technically school employees?

For a roundup of the K-12 implications, check out Evie Blad’s coverage for Education Week. She also examines concerns among civil rights groups and high-ranking Democrats that the regulations will only make it easier for schools to overlook or ignore complaints.

Are there conflicting laws or regulations?

Will students’ rights under Title IX be different than those for employees under Title VII, which covers sexual discrimination in the workplace? Are there conflicts with state or local laws? Reporters should also look at what’s been promised to faculty and staff through negotiated agreements or outlined in tenure processes, Kingkade suggested.

You can put some of these questions to legal experts and Title IX advocates like the National Women’s Law Center. It’s also essential to talk with union leadership, and the administrators who negotiate on behalf of the K-12 or postsecondary schools.

How can or should schools balance the rights of accusers with rights of the accused?

The ground rules are changing for all sides.

Under the 2020 federal provisions, schools will be allowed to choose their own threshold for upholding complaints: either “preponderance of evidence,” which is already used by many colleges, or “clear and convincing evidence,” considered by legal experts to require a higher burden of proof. But whichever it chooses, a school must then apply that one standard consistently, DeVos said in her press call.

For a school to be held liable for “mishandling allegations” it would have to be proved that the school was “deliberately indifferent,” The New York Times’ Erica Green explained. That’s a fairly high bar.

Advocates for sexual assault survivors have objected to the new rules giving the accused the right to cross-examine accusers. While the Trump administration’s new rules do not require accusers to be face-to-face with their alleged assailants at a hearing, or to answer questions posed directly by them, advocates for victims say the process could nevertheless be re-traumatizing.

The American Association of University Women, for example, said the changes “will make it harder for students who’ve experienced sexual harassment or violence to come forward to get the protections Title IX was created to provide.” But Trump administration officials – and a diverse group of legal scholars – have charged that the Obama administration’s prior regulations were unfair to the accused.

The NWLC suggested reporters consider whether the revised regulations might influence students’ reporting of sexual harassment and assault, as well as have a broader impact on student survivors. And that’s also a good reminder not to overlook the voices of students in these stories. For more on how to interview young people who have experienced trauma or for stories that require special sensitivity, read our recent piece on talking with adolescents.