Wednesday is the last day of the public comment period for Secretary of Education Betsy DeVos' proposed changes to Title IX, a federal law that prohibits sex-based discrimination in any federally funded education program or activity. The proposal has amassed close to 100,000 comments, likely meaning that it will be many months before the Department of Education analyzes and modifies the proposal. In the meantime, House Democrats have vowed to take "bold, immediate action" to prevent the new rules from taking effect.
According to DeVos, the focus of the proposal is to ensure "that every student can learn in a safe and nurturing environment," and give equal treatment to alleged survivors and assailants. The changes would also narrow the pool of cases where schools can be held accountable for handling sexual misconduct. Among other regulations, the proposal:
- Only holds schools accountable for cases that take place on campus.
- Defines sexual harassment as "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."
- Requires students to report sexual misconduct to "an official who has the authority to institute corrective measures" rather than a trusted peer like a residential adviser.
- Would require colleges to hold live hearings where both sides have a chance to cross-examine testimony and would require survivors to speak with specific school officials.
Around the country, people have hosted "comment parties" to educate one another on the regulations and write and submit comments en masse. At a Yale Law School event last week, the school's Title IX Working Group, which advises on programming, publications, policies, and training related to sexual misconduct, helped people, regardless of party affiliation or perspective on the regulations, learn about and participate in the notice and comment process.
Many commenters have raised concerns that the proposal will discourage survivors from coming forward, even in an era when people seem to be speaking out about sexual misconduct more than ever. As one commenter said, "While the majority of the country acknowledges #MeToo, the [Brett] Kavanaugh case, [Donald] Trump and his pussy grabbing, etc., the [Department of Education] decides it's a good time to make schools less liable for assault and make it so that when a report is received, the victim has to relive their trauma, trapped in some classroom-turned-[courtroom] with their abuser and a bunch of lawyers and officials that the victim barely knows."
Research also shows that elements of the proposal, such as the cross-examination rule, could be ineffective at revealing the truth in sexual assault cases. In November, Emma Sarappo reported for Pacific Standard on the ways cross-examination would complicate such cases, where survivors often experience memory lapses apart from the crucial moments of an assault:
In many cases, the goal of cross-examination is to ask confusing, complex, or leading questions to impeach a witness' initial testimony—but this can distort even a truthful account. That's because the way people recall traumatic memories can be at odds with the purpose of cross-examination. Our brains tend to encode the most terrifying memories of traumatic events and bring them back to us—especially in the case of post-traumatic stress disorder, where people experience intrusive thoughts and flashbacks to the traumatic memory, sometimes triggered by stimuli in the present. But when all our focus is on the most pivotal moments, it's easy for other details (where something happened, what day it was, and more) to fall by the wayside. The things we pay more attention to, especially negative attention, are more reliably encoded.
The proposal maintains that the new rules serve to clearly articulate schools' obligations in sexual misconduct cases, and "the transparency of the proposed regulations will help empower students to hold their schools accountable for failure to meet those obligations."