Your Guide to the Updated Title IX Rules

In August 2020, the Trump administration’s secretary of education, Betsy DeVos, finalized new rules that narrowed the definition of sexual misconduct on campuses and effectively protected those accused of misconduct. In response, Know Your IX, a project of Advocates for Youth — a group that educates and empowers youth to fight against sexual violence in schools — created a guide that emphasizes Title IX is an “alternative to the criminal legal system — one that is more just and responsive to the educational, emotional, financial, and stigmatic harms of violence.”

Here is a breakdown of what protections Title IX lays out for victims and how DeVos’ new rules have affected those protections.

1. Schools are required to provide victims with supportive measures after they have been sexually harassed. Title IX gives students access to recourse after experiencing things like sexual assault, sexual harassment, dating violence, domestic violence, and stalking. One is protected after these acts of violence if they occurred on campus, off campus during a school activity, off campus where the school has “substantial control” over the situation, off campus in a school-owned building, or online using a school platform.

The Obama administration created a more expansive definition of sexual harassment, to include rumors and repeated verbal harassment. DeVos questioned the validity of sexual harassment under Title IX, asserting that “severity and pervasiveness are needed elements” to ensure that they do not “punish verbal conduct” in a way that restricts freedom of speech. Further, the Obama administration encouraged schools to report and address sexual harassment, to avoid a hostile learning environment and to avoid the harassment becoming “severe or pervasive.” Trump’s Department of Education rejected this, claiming that schools are not required to act on comments that “might seem minor,” even if they contribute to a hostile learning environment.

1. In terms of reporting, a victim can make a confidential report or file a formal complaint. A confidential report gives the victim more choices on what to share with their school and more control over the process as a whole. In cases that are not quid pro quo harassment, one is supposed to be able to choose an informal resolution process, which does not require cross-examination, instead of a formal investigation. However, the new Title IX rules require there to be a clear and publicized route for reporting, so a victim has to file a report with the Title IX coordinator to receive supportive measures. This is potentially problematic because the rule establishes that it is the coordinator’s discretion to start a formal investigation even if the complainant disagrees. Critics of the policy have stated that this puts too much responsibility on the victims to report harassment, because schools have “subtle ways of discouraging students” from reporting at all.
2. There is now no obligation for schools to investigate reports of sexual abuse unless the report was told to a specific, small number of higher-up administrative officials. This blocks more “informal pathways” of reporting misconduct, like telling a staff member who is not specifically a Title IX coordinator. This DeVos-era change in the law may cause victims to lose the option of an investigation due to who was first told about the incident. The most “formal” pathway in this interpretation of the law seems to be for a student to approach the school’s designated Title IX coordinator in order to be able to report and receive supportive measures. Additionally, if the student is under 18, some teachers are “mandatory reporters,” so there are ways to get around the informal pathway roadblock before the Biden administration makes its own changes.
3. If a student goes forth with an investigation, under DeVos’ new rule, there is a requirement for mediators to treat the case assuming that no sexual harassment occurred, which begins the process under the assumption that the victim is lying. This, coupled with intensely retraumatizing cross-examination that is part of the investigation, makes reporting a daunting task for students who are already going through a lot. However, a school cannot discourage a student from their right to an investigation or try to convince them to do a lesser, informal resolution. Furthermore, a student does not have to go through an investigation or a formal complaint process to stop their harasser from communicating with them or being in the same spaces. This is where supportive measures come into play.

A victim can ask for several supportive measures:

• A one-way no-contact order: this prohibits the abuser from directly contacting the victim, and can include friends of the abuser
• To be moved to a different class, dining hall, or workplace
• For a campus escort to be provided
• To move the harasser instead of moving themselves (in the context of residence halls)
• To remove the abuser from a school activity or leadership position

One key change with DeVos’ plan is that schools cannot give punishments that are harsher on the respondent than the victim because of a “presumption of innocence that must underlie all disciplinary proceedings.” Schools now cannot remove the abuser from school altogether unless they are found guilty or are deemed to pose an immediate threat to the victim or others’ safety. If the harasser was an employee, they can only be put on paid administrative leave if an investigation is started.

Outside of measures that include the assailant, there are several other modes of support that schools can offer victims — and which they are required to provide for as long as necessary.

First, they can help connect victims to either a school therapist or psychiatrist, or help to find local health services available. An academic advisor can write letters to professors in order to get more time on exams and assignments. If the student is not able to return to class quickly, a leave of absence without withdrawing from a class and without punishment should be offered. If the student decides to continue with those classes, they can be provided with a tutor, offered a pass/fail grade on their transcript, allowed to attend online school, and can ask for regrades of certain assignments. If the victim cannot finish the class due to the harassment, the school should reimburse the tuition for those classes. Know Your IX elaborates on this, explaining:

If you have a disability, the harassment may have made things even harder. Sex-based harassment can also cause new disabilities, like anxiety, depression, or post-traumatic stress disorder (PTSD). Whether you have an old or new disability, you have a right to supportive measures or accommodations

Schools may not punish a victim for acts that may result from what happened to them, such as missing a class. The school also cannot punish a student for a rule that was broken during the reported incident (drinking alcohol, breaking covid rules), unless it is a zero tolerance rule on campus.

As a young college student with PTSD, I cannot stress enough how valuable this information is to know, and how important it is to advocate for the continuation of supportive measures for victims, because PTSD and sexual violence can truly challenge every moment of a survivor’s day.

For more detailed information, visit the FAQ from Know Your IX.