BIPP Insights

BIPP student intern Nicole Reddig ’22 weighs in on recent revisions to Title IX made by the Trump Administration.

Title IX and the Trump Administration

Since the Trump Administration was elected into office, its officials have worked to re-evaluate and re-write many of the policies from previous administrations. Education policies have mostly gone unnoticed after the confirmation hearing of Secretary Betsy DeVos; however, last November, the Department of Education announced revisions to Title IX, which protects students from sex discrimination in federally funded education programs.

Title IX was originally adopted in the 1970s as part of the Education Amendments of 1972 and affects how universities handle reports of sexual assault and harassment on campus. Since its adoption, one of the most significant overhauls of the legislation occurred during the Obama Administration with the announcement of the “Dear Colleague” letter by former Vice President Joe Biden in 2011. This letter stated, “If a school knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.” Specifically holding schools accountable for enforcement of sexual harassment policies, the Obama administration’s policies supported victim-survivors by outlining best practices as they seek accommodations. These included prompt investigations that would conclude within two months and a lower burden of proof for cases of sexual harassment, meaning that one must only prove that it is more likely than not that an incident occurred.

On the other hand, Secretary DeVos’s proposed regulations mirror more of a pre-Obama approach to the legislation, focusing on due process. In order to ensure that “every student accused of sexual misconduct must know that guilt is not predetermined,” the regulations offer basic protections for the accused. These include a presumption of innocence, written notice of allegations, and the right to cross-examine accusers through a proxy. Mandating live hearings for investigations, the law also holds that schools can choose their own evidentiary standard, reaching as high as “beyond a reasonable doubt.” Additionally, the new policy re-writes the definition of sexual harassment itself to encompass “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 school’s education program or activity.” In contrast to revisions of Title IX in the past, this definition limits what can be considered sexual harassment, and also maintains that schools can only be compelled to act if the school has “actual knowledge” of the event occurring, and if it occurred during the school’s own activity or on school grounds. The regulations are now under a sixty-day period of public comment before a final policy is announced, presumably later this month.

While, under any administration, Title IX works to ensure that “every student can learn in a safe and nurturing environment,” DeVos’s policies offer more direct protections for the accused and money saving provisions for universities than that of previous administrations. Guided towards punishing less students for sexual misconduct, and therefore lowering the risk of “false accusations,” the new policies turn requests for accommodations into almost courtroom like ordeals. By putting victim-survivors through weeks of traumatic hearings, including cross-examination, these policies may make them too uncomfortable to even report sexual harassment in the first place. Furthermore, by limiting a school’s response to sexual harassment to only include events that they have “actual knowledge” of and occurred on campus and/or within a school program, the policy restricts what a university may even be liable to investigate. If the situation does in fact call for an investigation, the narrower definition of sexual harassment includes only those actions that are “severe, pervasive, and objectively offensive that it denies a person access to the school’s education program or activity,” limiting what could even be a violation of Title IX. This rather objective definition gives an institution a lot of leeway regarding what it considers to be a denial of a person’s equal access to education. Thus, these policies further take away power and choice from victim-survivors of sexual assault.

While no school has ever had its funding revoked because of a violation of Title IX, there were nearly 400 investigations opened during the Obama Administration about schools’ handling of sexual harassment. The Trump Administration’s policies will presumably lead to less investigations, and thus, help universities save money. As projected by the Department of Education, within the next ten years, these policy changes will save schools between $286 million and $367 million. According to the New York Times, individual schools spent up to $600,000 to avoid being found in violation of Title IX. Moreover, lobbying records indicated that “universities like Yale, Vanderbilt, Texas A&M, and the Universities of Iowa and Colorado spent tens of thousands of dollars – just in the past year alone – lobbying the Trump Education Department on regulations.” While universities are not obliged to follow these policies – instead, they could maintain the Obama administration’s regulations, or adopt their own, stricter versions – these bare minimum standards give them far more leeway in how they handle allegations of sexual harassment.

Giving schools more flexibility may save them money, but it also puts victim-survivors in an uncomfortable situation where, if they come forward seeking relief, their power could be taken away to balance a budget. By narrowing the definition of what could be sexual harassment and adopting a courtroom-style process for investigations with the highest evidentiary standard, Secretary DeVos’s proposed regulations provide many protections for the accused and the liable universities but fail to best protect victim-survivors themselves. Assuming that there are no major changes after the period of public comment, after the policies are formally announced, universities, including Bucknell, will have to decide which policies they want to adopt, and who they want to protect.

Sources of Information:

Bolger, D. (2018, November 27). Betsy DeVos’s new harassment rules protect schools, not students. Retrieved January 14, 2019, from New York Times website: https://www.nytimes.com/2018/11/27/opinion/betsy-devos-title-ix-schools-students.html

Department of Education Press Office. (2018, November 16). Secretary DeVos: Proposed Title IX rule provides clarity for schools, support for survivors, and due process rights for all [Press release]. Retrieved from https://www.ed.gov/news/press-releases/secretary-devos-proposed-title-ix-rule-provides-clarity-schools-support-survivors-and-due-process-rights-all

Green, E. L. (2018, November 16). Sex assault rules under DeVos bolster defendants’ rights and ease college liability. Retrieved January 14, 2019, from New York Times website: https://www.nytimes.com/2018/11/16/us/politics/betsy-devos-title-ix.html

Larkin, M. (2016, November 25). The Obama administration remade sexual assault enforcement on campus. Could Trump unmake it? Retrieved January 14, 2019, from WBUR website: https://www.wbur.org/edify/2016/11/25/title-ix-obama-trump

*The Bucknell Institute for Public Policy (BIPP) is a nonpartisan institute. Guest writers’ views on public policy are not endorsed by the Institute.

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