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Betsy DeVos’s New Harassment Rules Protect Schools, Not Students

Institutions have been pushing for less liability when it comes to sexual misconduct on campus. Now they’re finally getting it.

Yale and other universities could face less liability when it comes to sexual misconduct on campus under new proposed rules.Credit...Jessica Hill for The New York Times

Ms. Bolger is a co-founder of Know Your IX, a campaign against sexual violence in schools.

Much of the coverage of proposed new rules released last week on how schools should handle sexual harassment allegations has focused on how the rules expand the rights of those accused — and they do. But the most significant parts of the proposal have nothing to do with protecting students, accused or otherwise. Instead, if allowed to go into effect, the new rules would, above all, protect schools.

Schools don’t like getting in trouble with the law. Under the previous administration, the Education Department opened nearly 400 investigations into schools’ handling of sexual violence. Some colleges reportedly spent as much as $600,000 to avoid the reputational hit of being found in violation of Title IX and the theoretical threat of the department pulling their federal funding (which it has never done).

The education lobby made clear it wasn’t happy. The National School Boards Association repeatedly demanded that the department ease the standards by which it assessed schools’ liability. The American Council on Education and a group of university presidents complained to Congress that the department’s approach was too vigorous. A lucrative cottage industry arose to train college administrators on “Twenty Steps to O.C.R.-Proof Your Campus on Title IX.” (O.C.R., or the Office for Civil Rights, is tasked with investigating schools.) Public lobbying disclosures reveal that universities like Yale, Vanderbilt, Texas A&M, and the Universities of Iowa and Colorado spent tens of thousands of dollars — in just the past year alone — lobbying the Trump Education Department on regulations, including on Title IX.

The new proposed rules lighten the burdens on institutions. First, the rules significantly narrow what counts as sexual harassment. Under the Trump administration’s definition, harassment must be “so severe, pervasive, and objectively offensive that it effectively denies a person equal access” to education. Some courts (though fortunately not all) have said that even a rape does not count under this standard because a one-time act of violence is not “pervasive.” That means a victim of rape (not to mention other less severe forms of sexual misconduct) might never see her school investigate her claims, let alone remedy them.

Second, under the rules, a school need only respond to sexual harassment that occurs within a school program or activity. A 12-year-old raped at a park by her classmate? The proposed rules wouldn’t require her school to provide her support, like assigning her to a different homeroom than her alleged rapist.

Third, under the rules, the department would hold a school liable only if a narrow set of school staff members had “actual knowledge” of alleged sexual misconduct. Legally, “actual knowledge” doesn’t mean simply that someone at the school knew about the assault, but rather that the right person — often someone high up in the administration and inaccessible to students — saw the student’s report.

The fourth big change limits the department to holding schools accountable only when they are “deliberately indifferent” to sexual harassment. That’s great news for schools’ lawyers and terrible news for students. Consider the case of Jane Doe, a ninth grader who was raped by her classmate, then taunted mercilessly by him and his friends. The school’s sole response was to tell her to drop out and enroll in an “alternative” school for poor-performing students. When the student sued, a judge held that the school’s response wasn’t bad enough to hold it liable under a deliberate-indifference standard. Though school employees “could also have attempted to discipline the harassers,” the judge wrote, the decision to offer her a choice at an alternative school “does not render them deliberately indifferent” to her plight.

The Education Department projects that its changes will save schools $286 million to $367 million over the next decade.

Education Secretary Betsy DeVos justifies her anti-student, pro-institution policies, which the public now has 60 days to weigh in on, by insisting that her Education Department should defer to the expertise of “local school leaders” and “not second guess” their decisions. That’s reminiscent of her disastrous confirmation testimony during which she argued that enforcing federal protections for students with disabilities is a decision “best left to the states.” It’s dangerous for the very same reason: By granting so much deference to “local school leaders” to decide how — and whether — to respond to a student’s harassment claim, Ms. DeVos all but abdicates her department’s authority to hold schools accountable for violating students’ rights.

American parents probably wouldn’t be happy to learn that. No wonder, then, that Ms. DeVos presents her proposal as defending the rights of the accused, rather than shielding institutions from liability.

We have federal civil rights law like Title IX for a reason. Fifty years ago, schools were allowed to impose all sorts of sexist restrictions on girls’ ability to learn. They could exclude girls from math and science classes and push them out of school for getting pregnant. We passed Title IX to end that.

Thirty-four percent of sexual assault victims, most of them women and girls, drop out of college. Others still are pushed out of their high schools. That’s alarming and should make harassment the sex equality issue of our generation. Our educations shouldn’t depend on whether we live in a school district that cares about girls’ rights. What a shame that’s the world Betsy DeVos is returning us to.

Dana Bolger is a student at Yale Law School and a co-founder of Know Your IX, a national youth-led campaign against sexual violence.

A correction was made on 
Nov. 29, 2018

An earlier version of this article mischaracterized public lobbying disclosure reports by universities. The reports indicate that the universities spent money to lobby officials regarding changes to campus sexual assault policies; they do not indicate what stances the schools took on those changes.

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A version of this article appears in print on  , Section A, Page 27 of the New York edition with the headline: Rules That Protect Schools, Not Students. Order Reprints | Today’s Paper | Subscribe

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