January 7, 2019

In 2011 and 2014, the Obama administration published guidance documents regarding how education institutions should address sexual misconduct in schools in order to comply with Title IX. Under the Trump administration, the U.S. Department of Education withdrew that guidance in September 2017 and replaced it with new recommendations for schools to follow while the U.S. Department of Education prepared to institute more permanent regulations.

On November 16, 2018, the Department of Education published proposed policies on sexual misconduct in schools that rollback much of the guidance that directed schools to appropriately address it. Unlike the guidance issued by previous administrations, the regulations will be mandatory for schools to follow. Fortunately, before the regulations are finalized, the rulemaking process allows the public an opportunity to comment on it, and the Department must respond to those comments. CAASE will comment and press the Department of Education to reverse their harmful, backward positions. We urge you to make your voice heard, too.

Here’s what you need to know about some of the proposed policy changes and how they would affect K-12 students in Illinois.

1. K-12 students would be most impacted

Much of the national conversation regarding Title IX and sexual assault has centered on colleges and universities, but these new policies would have a harmful impact on K-12 students as well. Illinois has a state law called Preventing Sexual Violence in Higher Education which provides colleges and universities with a baseline for responding to sexual misconduct. However, the state lacks such a law addressing sexual misconduct in K-12 schools where it’s also alarmingly common, as documented by the Chicago Tribune. As a result, the new federal regulations will govern how the state’s primary and secondary schools handle these cases.

2. Students may face repeated and escalating sexual harassment before the school has any duty to respond

Under the proposed regulations, schools would be allowed to ignore cases of sexual harassment that are not sexual assault until the harassed student has been denied equal access to their education, such as being forced to miss classes or drop out of school. Students may experience many wide-ranging, negative effects of sexual harassment before a school recognizes that they are being denied access to education. If a school is only required to address cases of harassment that deny a student’s access to education, students would be forced to endure repeated and escalating levels of abuse before they are able to receive help from their schools.

The proposed definition of sexual harassment also requires more severe and persistent sexual conduct than Title VII’s definition of sexual harassment in the workplace. This will create the disturbing and senseless effect of children being forced to endure more severe sexual harassment in schools than adults have to experience in the workplace before any action is legally required to stop it.

3. Schools would have no responsibility for responding to students in many sexual assault incidents

Much of the sexual misconduct suffered by students does not take place at school. Yet, the new regulations would only hold schools responsible for investigating incidents that take place on their grounds or during a school activity. This is a departure from guidance from the Bush and Obama administrations strongly suggesting that schools investigate complaints regardless of where an incident took place. Under the proposed policy, when a student is assaulted by a classmate at an off-campus location such as a friend’s house or a party, the school would actually be required to dismiss the survivor’s complaint under Title IX and would have no obligation to investigate or take any action whatsoever.

When a school does not initiate an investigation, a student victim may have no choice but to continue seeing their assailant each day in class, in the hallways, and in the lunchroom. Feeling forced to share space with their assailant can further traumatize a victim and severely hinder their ability to focus and learn. Harmful situations such as these would fly in the face of Title IX’s purpose to provide an equal opportunity to education.

4. Reporting sexual misconduct to a trusted guidance counselor, nurse, or coach likely not enough to require the school to act

In order to comply with previous recommendations, including the interim guidance issued by the current administration in 2017, a school was required to respond if it knew or reasonably should have known about possible sexual misconduct. The proposed regulations would only hold institutions legally responsible for investigating and responding to formal complaints made to a Title IX “official who has the authority to institute corrective measures.” While teachers at K-12 schools will fall under this category, it is unclear which other school employees — including coaches, teacher’s aides, guidance counselors, and nurses — will be considered the proper “officials”.

Under the new rules, if a student tells a trusted school employee that they have been assaulted and that adult is not such an official, the school would have no duty to investigate the complaint. This policy would reduce liability for schools and make it easier for them to avoid addressing – or even cover up – sexual misconduct. It would also place all of the responsibility on students to tell the correct official and place blame on them if they report their assault to the ‘wrong’ staff member.

5. Student victims may be pressured into ‘talking it out’ with their assailant

If a school does respond to a complaint, the proposed regulations would allow it to facilitate a mediation, instead of engaging in a formal disciplinary process, if the parties agree to it. Informal resolution procedures such as mediation were considered inappropriate under Bush and Obama administration guidance. Because of the power dynamics between students and school administrators, it’s difficult to ensure participation in mediation is truly voluntary. Some students may wish to go through an informal resolution, but many may feel they don’t have the option or the autonomy to say no when a school official asks them to agree to mediation. It’s easy to imagine how a student victim may be further traumatized by facing their assailant during mediation under these circumstances.

Schools might also use mediation as a way to avoid investigating sexual misconduct or making a decision regarding sanctions. By foregoing an investigation, a school dodges the important process of determining whether a student assailant has created a hostile environment or is a potential threat to other students. This does a disservice to the survivor and the rest of the school community.

6. Survivors may have to present a higher level of evidence than victims of bullying, racism, or other student conduct violations

Previous guidance recommended that schools use a standard known as “preponderance of the evidence” in determining if sexual misconduct took place. It means the evidence must show it’s more likely than not that the accused committed the violation. It is the standard used to determine all kinds of student misconduct violations – from plagiarism to vandalism to bullying. It is also the standard used in most civil cases in Illinois.

Under the proposed changes, schools may be required to impose a higher evidentiary standard known as “clear and convincing” – meaning it’s substantially more likely than not that sexual misconduct occurred. It’s a more difficult standard to meet and schools would be forced to use it unless they employ the preponderance standard for other misconduct violations that may end in the same level of discipline AND for complaints against school faculty or staff. Raising the standard of proof would make it even more difficult for student victims of sexual misconduct to get justice or accountability in their cases.

WHAT YOU CAN DO

Support Initiatives from Student Advocacy Groups

Allies are working to keep sex discrimination out of education. Learn more about their work and support their efforts

Support K-12 Protections in Illinois

Update: The Ensuring Success in School Law (ESSL) passed both Houses, and was signed into law by Gov. Pritzker on 8/20/21

Our state has the Preventing Sexual Violence in Higher Education Act which codified into state law some of the guidance previous administrations had made in regards to sexual misconduct in schools. The act provides protections for college students, but sexual harassment, abuse, and assault are not limited to higher education. We are advocating for the Ensuring Student Success Law (ESSL)which would extend similar protections to primary and secondary students in Illinois regardless of changes to Federal regulations related to sex discrimination. Follow CAASE on Twitter and Facebook to learn more about the bill and how to contact your state legislators.

Update: ESSL passed Both Houses, signed into law by Gov. Pritzker on 8/20/21