This Is the Harm That Was Done to Title IX Under the Trump Administration

While the incoming Biden administration has committed to reimagining the controversial Title IX rules that Secretary of Education Betsy DeVos finalized earlier this year, the new administration’s actions will be crucial to reaffirming the faith of sexual violence survivors after the damage of the Trump presidency.

Title IX is a federal civil rights law passed in 1972 that outlaws discrimination based on sex in educational institutions that receive federal funding. It mandates that colleges respond to and remedy claims of hostile educational environments. In 2011, the Obama administration’s Department of Education released a guidance letter that instructed educational institutions to better adjudicate and prevent sexual violence on campuses. A supplemental Q&A document in 2014 elaborated on definitions of various types of sexual misconduct and gave further guidance on the process of how schools should apply Title IX.

In 2017, DeVos reversed both Obama-era letters. She held “listening sessions” with stakeholders to conceptualize her reform ideas, and was widely panned for choosing to meet with questionable groups, like some associated with the “mens’ rights” movement. DeVos met with Families Advocating for Campus Equality, whose co-founder once remarked on how “dangerous” it was to have colleges collect annual reports on sexual violence and publicly release their results.

DeVos released a draft guidance of her new rules in 2018, which narrowed the definition of sexual harassment and reduced the jurisdiction of Title IX so that campuses do not have to investigate assault unless it happens on campus or “in conjunction with an education program or activity.” The latter is a notable restriction considering that RAINN estimates only 8% of campus sexual assault occurs on campus proper. The guidance also mandated that survivors must submit to live cross-examinations from their accuser’s advisor of choice, who could be anyone from a parent to a high-powered lawyer.

Shiwali Patel, the director of justice for student survivors and senior counsel at the National Women’s Law Center, told The FBomb that this new guidance “disproportionately burdens survivors at every stage of their school’s Title IX complaint and investigation process, which really ultimately will have a chilling effect on future complaints of sexual harassment in an environment where it is already dramatically underreported.” Patel also noted that these “inequitable procedures” are only mandated in cases of sexual misconduct on campus, even though schools investigate a variety of other misconduct, based on the misconception that survivors who bring forward complaints of sexual misconduct are “uniquely unreliable.”

DeVos opened up a 60-day comment period, which is a standard process meant to be taken when agencies decide whether or not to implement a draft guidance, to solicit feedback on the proposed rules. Backlash from trauma experts, survivors, administrators, and advocates was swift, particularly in the form of comments submitted in response to the guidance and subsequent petitions against it. Many groups used the opportunity to highlight that DeVos hadn’t listened to their concerns in the “listening sessions” and to oppose the draft rules in hopes of preventing them from advancing.

“There were over 125,000 comments that were submitted from a wide variety of stakeholders,” Patel said. “Not only student survivors and survivor advocates, but other civil rights activists, teachers, higher education professionals, and mental health professionals. Over 500 trauma specialists joined a sign-on letter. The majority of comments submitted opposed DeVos’s proposed changes to the rules, yet she moved forward with it. To ask for public input but then to not listen to it — then what’s the point?”

Survivors have been “exhausted” and “frustrated” through DeVos’ tenure, Ali Safran, the founding director of Surviving In Numbers, a nonprofit focusing on survivor empowerment and educational prevention trainings, told The FBomb. “DeVos set a tone that survivors were not going to be listened to,” Safran said.

Though multiple legal challenges attempted to stall them, the DeVos rules went into effect in August. Two lawsuits fighting to get the rules struck down are still ongoing, including one helmed by the NWLC that is currently awaiting a trial decision.

As the rules went into effect, student activists and administrators opposed to the changes struggled to offset the damage. Ko Smaoui, a senior at the University of California Los Angeles who serves as the co-director of the student advocacy group Bruin Consent Coalition, described attempts to sidestep the guidance to the FBomb. The coalition’s work with the UC Student Advisory Board, a group of students from across the University of California system who collaborate with the broader UC administration to consult on policies, was critical to crafting the UC’s 2020 policy, which enforces the DeVos guidance when it’s necessary, while creating its own student handbook regulations and programs that internally broaden their definition of sexual harassment, mandate investigation for violence committed off campus, and crucially don’t require the live cross-examinations of survivors in these “additonal” settings.

“I’m sharing our UC handbook with students all over the country to say this is what we did, this is what’s working, this is what isn’t working — how can we help each other fill those gaps?” Smaoui said. This approach offers relief for institutions that lack the resources or pre-existing support of the UC, allowing them to use language that’s been created and adopted by a system with the time and money to craft resistance strategies.

Information-sharing like that could be critical as Biden tackles the DeVos rules. A set of regulations that have gone through the full legal rulemaking process at the Department of Education, like DeVos’s current guidance, would be the most comprehensive solution, but it would potentially take years to develop. Meanwhile, Biden could direct the Department of Education to not enforce the current regulation, which could create legal liability issues and confusion as colleges struggle to figure out which guidelines to follow. He could also issue an interim informal guidance, similar to the 2011 letter, but it could run into trouble carrying the force of law against the current regulatory-reviewed guidance.

“The administration should say that because this rule has been challenged in court, the DOJ should advise on the best course of action to permit the Department of Education to reconsider the Title IX rule given the pending litigation,” Patel remarks. She also highlights the need for Biden to provide technical assistance to schools on the ground, similar to Smaoui’s recommendation that the incoming administration provide funding and resources to efforts that “fill the gaps.”

Betsy DeVos’s tenure has been harrowing to survivors, activists, and experts. Safran acknowledges that “there’s no guarantee with any administration that we’ll get all we fight for, but with this turning of the page, there is a restoration of hope,” and Patel underscores that the Biden administration now has a chance to restore and strengthen civil rights protections in education. Smaoui sums up the hopefulness and trepidation of activists who have been fighting for reform in these unforgiving conditions. “I’d say relief with caution.”