The U.S. Department of Education withdrew Obama-era guidance on Title IX and sexual assault at schools and college campuses late last month, and released interim guidance while it seeks public input to inform a new policy 鈥渢hat better serves students and schools.鈥�
While discussions on the sexual assault guidance have largely focused on its effects on college and universities, advocates for sexual assault victims said moves by U.S. Secretary of Education Betsy DeVos to revise the directive could affect K-12 schools, too.
The Obama administration created the guidance in response to concerns that colleges and universities weren鈥檛 doing enough to address the problem of sexual assault in higher education settings.
But the directive helped clarify the responsibilities of educational institutions at all levels, advocates said. That clarity benefited K-12 schools, which have often lagged in their responsibilities to investigate assaults, to appoint Title IX coordinators, and to ensure that survivors of such incidents are free from fear and harassment from perpetrators, said Neena Chaudhry, the director of education for the National Women鈥檚 Law Center, which supported the guidance.
鈥淭here was enough attention on the issue that schools were finally trying to get it right,鈥� she said.
Release of the guidance under Obama was followed by an uptick in Title IX complaints, including dozens at elementary and secondary schools.
Whatever changes DeVos ultimately makes, advocates fear that revisions鈥攃oupled with a shifting approach to education civil rights under the Trump administration鈥攃ould cause school districts to deprioritize compliance with Title IX after a time of great momentum on the issue, Chaudry said.
Interim Guidelines
Others praised DeVos鈥� actions, saying clarity is needed to protect the due process rights of those accused of sexual assault.
The 2011 Obama directive detailed how, under Title IX鈥檚 provisions about sexual harassment, schools and higher education institutions should work to respond to acts of sexual violence鈥攂oth those that occur on campus and those that happen off campus but affect the school environment. Schools have an independent responsibility under Title IX to investigate complaints of harassment and assault apart from separate criminal investigations led by law enforcement, the guidance said. And they could take action if a 鈥減reponderance of evidence鈥� showed that a violation occurred, which is a lower standard than is used in criminal matters.
The interim guidance DeVos released does not require schools to use that lower standard of evidence. The standard of evidence schools use in a sexual assault case need only be 鈥渃onsistent with the standard the school applies in other student misconduct cases,鈥� the new guidance says.
Some conservative groups have said the Obama-era guidelines led to 鈥渒angaroo courts鈥� on college campuses, where the rights of the accused were not respected. Advocates said it created a balance in power between accusers and those who鈥檇 been accused and that problems highlighted by critics were often due to poor implementation.
DeVos said the Education Department would update the guidance after seeking public input.
鈥淚n order to ensure that America鈥檚 schools employ clear, equitable, just, and fair procedures that inspire trust and confidence, we will launch a notice-and-comment process to incorporate the insights of all parties in developing a better way,鈥� DeVos said. 鈥淲e will seek public feedback and combine institutional knowledge, professional expertise, and the experiences of students to replace the current approach with a workable, effective, and fair system.鈥�
K-12 Obligations
A touchstone Title IX case centers on K-12 schools. In the 1999 Davis v. Monroe County Board of Education case, the U.S. Supreme Court sided with the family of a 5th grade girl who argued that her school district had violated her right to equal educational opportunities when it did not adequately respond to sexual harassment from another student.
Similarly, K-12 schools are obligated to address students鈥� concerns about assault and harassment, even if the accused is not found criminally liable, Chaudry said. Those responses might include moving students into different classes so they don鈥檛 have to interact with each other. And that doesn鈥檛 always happen, she said.
鈥淲e have seen many many cases of schools at the K-12 level completely abandoning their Title IX obligations, not following them at all,鈥� Chaudry said. She cited a recent lawsuit in which the National Women鈥檚 Law Center asserts that a Pennsylvania district encouraged a female student to enroll in an alternative school rather than separate her from an ex-boyfriend who she said was harassing her.
Some K-12 education groups, including the National School Boards Association, have been involved in discussions with DeVos about the Title IX guidance. At the time the Obama-era directive was released, NSBA General Counsel Francisco Negr贸n had some concerns.
鈥淥ffering districts guidance that鈥檚 useful ... can help them keep students safe,鈥� he told 澳门跑狗论坛 at the time. But it also raises some questions, he said.
鈥淥ur concerns are that the requirements of the law not be interpreted in an overly expansive way,鈥� he said. 鈥淒o you treat every incident of sexual violence as inherently creating a hostile environment?鈥�
Negr贸n said districts also need more clarification on when an off-campus episode rises to the level of requiring school district action.
鈥淪ay the allegations haven鈥檛 been proven,鈥� he said. 鈥淚t鈥檚 not clear from the department鈥檚 guidance what the district鈥檚 responsibility would be. We don鈥檛 want [school districts鈥橾 measured decisions chilled by fear of litigation.鈥�
