October 1, 2020

The Department of Education (ED) made changes to a federal law intended to protect against gender discrimination in education, known as Title IX. The new rules went into effect on Aug. 14, 2020 and will impact how schools respond to sexual harassment and assault. It applies to both K-12 schools and higher education institutions. Here are some important changes to know about:

SCHOOLS HAVE TO DISMISS OFF CAMPUS ASSAULTS

Schools are now required to dismiss all complaints of sexual harassment and assault that occur outside of a school program, activity, or during a study abroad program. For example, they will not investigate sexual misconduct that takes place at a fraternity not officially recognized by the university, in off-campus housing, at a party, or online. Previous ED guidance required schools to investigate all complaints, no matter where the incident happened. 

STRICTER DEFINITION OF SEXUAL HARASSMENT 

Schools have to ignore complaints of student-on-student sexual harassment that does not rise to the level of sexual assault unless it is “determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access” to their education, school program, or activity. This means students of all ages will have to endure more severe sexual harassment in school than adult employees in the workplace before intervention is required. It’s a departure from the long standing ED definition of sexual harassment as “unwelcome conduct of a sexual nature” and schools were previously required to investigate all complaints. 

LIVE CROSS-EXAMINATION IN HIGHER EDUCATION 

In higher education, survivors and witnesses in sexual misconduct cases will be forced to submit to cross-examination “directly, orally, and in real time” by the respondent’s advisor of choice if they want any of their statements to be considered as evidence by the school. Before, schools were strongly encouraged to allow case parties to submit a list of questions that a trained third party could ask. It’s important to note that this rule conflicts with some state laws barring cross-examination of this kind, including Illinois’s Preventing Sexual Violence in Higher Education (PSVHE) law. It is unclear whether colleges in states with a conflict on this matter will be required to comply with the new Title IX. It’ll likely need to be resolved in court. 

SURVIVORS HAVE TO KNOW EXACTLY WHO TO TELL 

Under the new rule, higher education institutions will not be required to respond to incidents of sexual misconduct unless the Title IX Coordinator or a school official with “the authority to institute corrective measures” has “actual knowledge” of the incident. Before, schools were required to address sexual misconduct if a student told nearly any employee. 

SCHOOLS CAN IGNORE COMPLAINTS IF THE SURVIVOR LEAVES 

As of Aug. 14th, a person can only file a complaint if they’re still “participating in or attempting to participate in the education or activity” of the school. Schools are not allowed to investigate complaints, even if the respondent is still a student or teacher at the school, if the complainant has already graduated, transferred, or dropped out and does not want to re-enroll or participate in alumni programs. Schools can also dismiss complaints, even if the disciplinary process already began, if the respondent is no longer enrolled in or employed by their school. Before, there was no rule about enrollment status to file a complaint or be involved in the disciplinary process. 

GREATER EVIDENCE CAN BE REQUIRED OF SURVIVORS

Previously, schools used the “preponderance of the evidence” standard, which is applied in many other types of school misconduct cases and civil rights cases in courts. It means a student survivor has to show it is more likely than not that their allegations are true. Now, schools can choose to shift to the “clear and convincing evidence” standard. It makes it more difficult for students making complaints about sexual misconduct to win their cases. 

For more information on these and other changes to Title IX, check out NWLC’s fact sheet. 

NOW WHAT?

Petition Schools

The changes to Title IX push education institutions to implement harmful policies, but there is still room for schools to do better than the minimum in order to create safer learning environments. CAASE will be helping local school staff and students understand their rights in Illinois so they can better engage with their administrators on these issues. Students who want to help their schools enact better policies should also check out resources from our national ally, Know Your IX. The petition toolkit may be particularly helpful! 

Get Legal Support 

CAASE will continue to stand with student survivors and represent them in education matters, including Title IX complaints, until schools are safe places for everyone. If you have experienced sexual assault and need legal assistance, email legal@caase.org or call us at 773-244-2230 x 204.

Stay Informed 

News about Title IX will continue to evolve and CAASE is here to be your resource. Be sure to follow us @theCAASE on Twitter, Facebook, and Instagram and subscribe to our newsletter to stay up to date on ways you can show students your support.

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This piece was authored by CAASE’s Staff Attorney specializing in education matters, Christina Zuba, and our Communications Manager, Hayley Forrestal.