U.S. Secretary of Education Betsy DeVos released a long-anticipated rewrite of federal Title IX guidance that allows schools to raise the bar on what evidence is needed to prove claims of sexual assault and harassment.
The proposed guidance replaces an Obama-era civil rights directive that DeVos revoked in September 2017. Secretary DeVos claimed that guidance didn't do enough to protect the due process rights of the accused. Her move, and the new guidance released this week, face intense criticism from women's groups that say the rewrite doesn't do enough to protect students who've been victims of sexual assault and harassment.
While most of the debate over Title IX has centered on colleges and universities, the new civil rights guidance will also affect K-12 schools.
If the proposed regulations are adopted, here are five things the new Title IX guidance means for South Dakota's K-12 schools.
#1 - Shifting The Threshold
The guidance allows schools to shift the threshold that officials use to decide if an assault happened from the "preponderance of evidence" standard set under the Obama administration to a "clear and convincing evidence" standard, which is a higher bar. Some critics of the Obama guidance had argued that the lower burden of proof threatened the due process rights of the accused.
#2 - Actual Knowledge
Schools will be held responsible for addressing a complaint if they have "actual knowledge" that an offense occurred, a higher bar than under the old guidance, which said they were required to intervene if they "reasonably" should have known about a violation. Schools will be faulted if they are "deliberately indifferent" to known sexual harassment, the guidance says.
#3 - Definition of Sexual Harassment
The directive also defines sexual harassment more narrowly as sexual assault or "unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school's education program or activity." Under the previous guidance, it was defined as "unwelcome conduct of a sexual nature."
#4 - On-Campus Activities
The new guidance requires schools to respond to "conduct within its education program or activity," which may cause some schools to ignore off-campus incidents, like incidents at student parties. It may also create some confusion about whether schools are required to respond to online harassment, like the sharing of explicit photos or demeaning messages.
#5 - Transgender Students
One thing the new guidance doesn't address - the rights of transgender students. Under separate Title IX guidance, the Obama administration had asserted that the federal law requires schools to allow transgender students to use the pronouns, restrooms, and locker rooms that correspond with their gender identity. In one of her first acts in office, DeVos teamed with then-Attorney General Jeff Sessions to revoke that guidance. It has not been replaced.
Source: Education Week
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