Part One in a Two-Part Series; Read Part Two here.

Who is responsible for sexual harassment and assault in schools? Schools can be liable for such violence under Title IX of the Education Amendments of 1972, a general ban on sex discrimination by educational institutions that receive federal funding. In response to disturbing data about the prevalence and harm of sexual violence in schools, the Obama administration took several steps to ensure that students at all levels were better protected. The Trump Administration now proposes not only to roll back the specific Obama-era changes, but also to eliminate other longstanding protections for students. In this two-part series, we will consider the development—and rollback—of Title IX protections against sexual misconduct.

Sexual Harassment Claims Under Title IX

Title IX provides “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance.” After much litigation about Title IX’s scope and implementation, the following principles are clear: (1) Title IX governs institutions as a whole, as long as any part of the institution at issue receives federal financial assistance; (2) the Department of Education’s Office for Civil Rights (OCR) has the power to enforce Title IX directly through audits, investigations, and penalties; (3) individuals who suffer actionable discrimination can bring a private lawsuit to enforce it; and (4) recipients who violate Title IX can be held liable in a lawsuit for money damages.

It is also clear that sexual harassment of students (including sexual assault, which is a particularly severe form of sexual harassment) violates Title IX. Litigation on this point began in earnest in the early 1990s, a decade or more after it had become an issue in the employment context. In 1986, the Supreme Court held in Meritor Savings Bank v. Vinson (1986) that sexual harassment at work is a form of intentional sex discrimination that violates Title VII, the main federal employment discrimination law. Five years later, in Franklin v. Gwinnett County Public Schools, it reached the same conclusion under Title IX. In that case, a tenth-grade girl complained that her teacher, who was also a coach, had subjected her to a barrage of sexual harassment, including sexually-oriented conversations; on three occasions, he insisted that other teachers release her from class so that he could take her to a private office and force her to have sex with him. The Court held that the girl could sue the school and that victims of Title IX violations could seek the full range of remedies that are available in private lawsuits, including compensatory and punitive damages.

Although both statutes have been interpreted to prohibit hostile environment and quid pro quo harassment, the Court settled on different rules of liability in private lawsuits for damages against employers under Title VII than educational institutions under Title IX. Under Title VII, employer liability is rooted in agency principles, which permit vicarious liability when the harasser is aided by the agency relation. The precise standard for liability (discussed in more detail here) varies by the rank of the harasser, the nature of the harassment, and the efforts the employer took to prevent or correct the problem. Advocates argued for a similar approach under Title IX. Instead, the Supreme Court settled on a unified approach to liability for money damages, regardless of whether the harassment was committed by an employee, such a teacher or administrator, or by a fellow student.

In Gebser v. Lago Vista Independent School District (1998), a case involving a teacher who fondled and initiated sexual contact with a middle-school student, the Court held that an educational entity, such as a school district, cannot be held liable for money damages unless an official of the school district with the authority to institute corrective measures has actual notice of, and is deliberately indifferent to, the harassment. The following year, the Court held, in Davis v. Monroe County Board of Education (1999), that the same standard would determine institutional liability for peer harassment.

While the rulings in Gebser and Davis were in some sense victories for the victims of harassment, the Court established a standard for liability that is in fact very hard to meet. More than a decade of litigation after these rulings has made that clear. However, the standard set forth in those cases did not limit the agency’s own enforcement of Title IX—they simply determined the circumstances under which a private plaintiff can collect money damages because of a school’s failure to respond appropriately to harassment.

The OCR’s Administrative Interpretation of Title IX

After the opinions in Gebser and Davis were handed down, OCR issued a revised policy guidance setting forth the standards for the administrative enforcement of Title IX. As the Supreme Court made clear first in Franklin, and then again in Gebser and Davis, the standards it announced apply only to actions for money damages in court. If a complainant seeks only injunctive relief or administrative enforcement, or if OCR initiates an investigation on its own, the standard for proving a Title IX violation is not as high.

In the 2001 guidance, OCR laid out the administrative standards for compliance. It imposed the following standard on schools: if a school knows or should know about peer harassment, then it has to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects. Schools also must publish a notice of non-discrimination, adopt and publish grievance procedures, and ensure that their employees are trained to report harassment and to respond to it.

The Obama Administration took note of the alarming data on sexual violence in schools—that one in five female students will be the victim of a sexual assault, that sexual assaults are reported at an extremely low rate, that educational institutions have a history of mishandling sexual assault allegations especially when the accused students are highly valued athletes, fraternity members, or children of important alumni. Scandals abounded in which schools were willfully blind to sexual violence and its often devastating effects.

It responded with a series of agency actions. In April 2011, OCR issued a “Dear Colleague” letter (DCL) to clarify the application of Title IX to incidents of sexual violence in schools and universities. While the same legal and administrative standards apply to sexual violence as apply to all forms of sexual harassment, the DCL gives illustrations and suggestions that specifically apply to sexual violence. It also warns recipients to avoid some common missteps in handling complaints of sexual violence.

The DCL defines sexual violence as “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol. An individual may also be unable to give consent due to an intellectual or other disability.” The physical acts at issue can include rape, sexual assault, sexual battery, and sexual coercion.

The DCL cautioned institutions about proper procedures: (i) peer harassment/violence may be covered by Title IX even if it occurs off grounds initially, if it has continuing effects in the school setting; (ii) they must respond even if the harassed student does not file a complaint; (iii) they should obtain consent from the complainant before beginning an investigation, and should take all reasonable steps to protect confidentiality if requested; (iv) they should notify the complainant of his or her right to file a criminal complaint—and should not dissuade him or her from doing so while awaiting the outcome of the internal investigation; (v) they should not wait for the conclusion of a criminal investigation before commencing their own investigation—they must take immediate steps to protect the student in the educational setting, regardless of any parallel criminal process; (vi) they should be using a preponderance-of-the-evidence standard when it comes to the burden of proof—which is the standard used by OCR when evaluating compliance with Title IX—and not the higher clear and convincing evidence standard; (vii) they should develop specific training materials on sexual violence; (viii) these rules apply to all students, including athletes and coaches.

Then, in April 2014, OCR issued another document, entitled Questions and Answers on Title IX and Sexual Violence, designed to provide further guidance to institutions on administrative standards because many had submitted requests for help after the 2011 DCL. OCR also began keeping a public list of enforcement actions, which showed hundreds of schools being investigated for their handling of sexual violence allegations.

The Backlash

The Obama Administration OCR’s interpretation of Title IX in this context was the subject of some controversy even before the Trump Administration took over the office. The requirement that schools use a “preponderance of the evidence” standard for internal investigations was criticized from many quarters. At Harvard, for example, a large group of law school professors made a very public objection to a new policy the university adopted under federal government pressure. Critics focused primarily on the fairness for students accused of wrongdoing.

Almost immediately after assuming her position as Secretary of Education under President Trump, Betsy DeVos began her efforts to roll back Title IX enforcement. In the summer of 2017, she held a summit, which kicked off with a declaration by Candice Jackson, the top civil rights official at the Department, that 90% of sexual assault accusations on college campuses “fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.” Although she tried to walk back that comment in a later statement, it reflected a deep-seeded suspicion of Title IX enforcement in this context—as well as suspicion of complainants themselves. Later that fall, the Department of Education rescinded the Obama guidance from 2011 and the Q&A from 2014. It left the 2001 guidance in place for the time, but promised new regulations. The proposed new regulations were issued on November 16, 2018 and are now open for a 60-day period of public comment.

The New Proposed Regulations: Retrenchment and Reversal

The proposed regulations do much more than merely roll back the Obama-era guidance on sexual assault. They drastically narrow the Title IX protections from sexual harassment, including sexual assault, that the Department of Education has long enforced. To solidify these draconian changes, the Department proposes to codify the changes as federal regulations, rather than under the auspices of a new interpretive guidance, which would be easier to undo in a new Administration. Taken together, the proposed changes are unified by one resounding theme: that the biggest problem involving sexual assault in colleges and universities today is not the one-in-five college women who will experience sexual assault, but that students (mostly men) are being unfairly accused of having committed it.

Many stark policy changes are written into the nearly 150-page document that the Department of Education published in the Federal Registrar when it announced the proposed new regulations. We have chosen to highlight for critique those changes that strike us as particularly problematic, though many others warrant equally strong criticism. And not all of the proposed changes are retrograde; some of them, such as requirements of written notice of the charges and updates if the charges change, are beneficial to ensuring the fair process that is in the interest of complainants and respondents alike. That said, many of the proposed changes codify a level of skepticism toward complainants, and tilt the scales of justice toward accused students, in a way that is incompatible with Title IX’s promise of a nondiscriminatory educational environment and the requirement of an “equitable” grievance procedure for addressing all forms of sex discrimination, including sexual harassment and sexual assault.

Lowering the Administrative Enforcement Standard to Actual Notice and Deliberate Indifference

The proposed regulations begin with the bold assertion that an educational institution need only hit the very low bar of avoiding deliberate indifference, once it has actual notice of sexual misconduct, in order to stay on the sunny side of OCR in meeting its Title IX obligations toward the victims of sexual harassment. This change, in itself, is a complete game-changer for the administrative enforcement of Title IX.

Since at least 1997, the Department of Education has followed administrative guidance that places a significantly higher burden on schools to respond with prompt and appropriate corrective action to remedy a hostile environment created by sexual harassment once the school knew or should have known that it was occurring. Granted, the Supreme Court ruled in a pair of decisions in 1998 and 1999 that proof of actual notice and deliberate indifference is required for a plaintiff to prevail in a private lawsuit for damages based on the sexual harassment of a teacher (in the first case) or a student (in the second). But the Court expressly reserved the ability of the enforcing agency, OCR, to impose a higher standard of compliance on schools through its administrative enforcement of Title IX, since that process provides an opportunity to come into compliance before any loss of federal funds (whereas no such compliance agreement would avoid a damages award imposed through litigation). The Department did exactly that when it issued a revised sexual harassment guidance in 2001, reaffirming that it would continue to require federally funded educational institutions to take prompt and appropriate corrective action to remedy a hostile environment once it knew or should have known that sexual harassment was occurring. In jettisoning that standard and replacing it with deliberate indifference and actual notice, the new proposed regulations seek to undo over two decades of OCR enforcement, not just the Obama years.

The new proposed regulation goes on to tightly circumscribe what counts as deliberate indifference, stating that adherence to the procedures prescribed in the new regulations is per se not deliberately indifferent toward complainants, and that finding an accused student “not responsible” for sexual harassment is not in itself deliberately indifferent, even if OCR would find that the student engaged in sexual harassment based on an independent review of the evidence.

The upshot of the standard is to effectively remove OCR from any meaningful administrative enforcement role in guarding the rights of students who experience sexual harassment–marking a stark change from OCR’s more robust enforcement role during the Obama years. The shift in institutional accountability also sets up an odd and problematic rift in the enforcement of students’ rights against sexual harassment and their rights to be free from other forms of harassment protected by law. Since the proposed regulation only covers sexual harassment, presumably other forms of discriminatory harassment, such as harassment based on race or disability, will continue to be governed by the more robust knew-or-should-have-known, and failure to take reasonable corrective action, standard.

It is rather late in the day for a civil rights agency to so blatantly defy the lessons of intersectionality like this. By now, anyone who pays the slightest attention to discrimination and civil rights law should realize that creating separate layers of different protections based on discrete categories like race, gender, and disability leaves discrimination victims out in the cold when biases overlap. For example, when women of color experience sexual harassment, it is often also racialized. Having to parse racial from sexual harassment, with different institutional legal obligations to respond, is a losing game, particularly for girls and women of color.

In Part Two of this column, we will consider several other disturbing aspects of the proposed regulations, including the narrowing of the definition of sexual harassment; the equating of sexual harassment victims and accused perpetrators as similarly situated with respect to Title IX’s protections; the erection of procedural hurdles to reduce the chance of finding a violation; the addition of deterrents to reporting; and the full embrace of the myth of false accusations.