By Paula Brantner
While leaders at institutions of higher learning have been scrambling to address the “new normal” resulting from the COVID-19 pandemic, they understandably might have missed some important Title IX developments that will have a lasting impact far beyond the next several months of acute crisis response. The news isn’t good for those who care about sexual assault prevention on their campuses and who want to ensure that sexual violence survivors have the ability to address harm with those who have abused them.
The long-awaited new regulations from Betsy DeVos’ Department of Education—if allowed to stand—will represent a retreat from recent efforts to change long-standing practices that have failed survivors far too many times on far too many campuses. This article will focus on what institutions need for an immediate pandemic-related response to Title IX matters, as well as to respond to the new Title IX regulations poised to cause more enduring harm, with particular emphasis on:
- Title IX Remote Work Plans: Timing, Reporting, and Continued Support
- Remote and Digital Harassment and Misconduct
- Major Title IX Changes During a Pandemic
- Silver Linings in the New Rules
Title IX Remote Work Plans: Timing, Reporting, and Continued Support
The need for Title IX enforcement has not gone away, despite the lack of physical proximity between students and an extended absence from campus. As the advocacy group Know Your IX recently reminded university presidents:
[S]chools’ logistical obstacles are not a sufficient justification for forcing students to forgo their right to a prompt and equitable process to address and redress sexual violence and other forms of sexual harassment. Meaningfully enforcing civil rights is not an obligation that dissipates in the face of institutional hardships–even during these unprecedented times.
Students are still entitled to Title IX’s legal protections and to expect that those who have Title IX responsibilities in their institutions will be continuing their work. Your institution should have already established a remote work plan to ensure both that existing cases continue moving towards resolution and that students can report new violations.
Graphic from Equal Rights Advocates.
Delays will cause additional trauma to your students during a time when they are already managing an extraordinary level of stress. While we all understand the current need to be flexible during this time, indefinite holds and delays longer than strictly necessary deny your students their fundamental rights to a prompt, equitable resolution of sexual misconduct claims. Keep the parties informed about any delay impacting their case, and prioritize work with graduating students and witnesses.
Institutions must continue to provide support to their student survivors, which should include access to remote counseling, adjustments to workload, and an acknowledgment that a student’s living situation may now impede their ability to fully cooperate and participate in Title IX proceedings at the present time. Students may not have told their parents about the assault, or may now have increased child care responsibilities. Disabled students may not have access to the same accommodations away from campus. Delay based upon increased hardship to the student survivor is permissible; indefinite delay based upon mere preferences, such as waiting until the responding party and their attorney can be in the same room, is not.*
Remote and Digital Harassment and Misconduct
As students are required to spend more time online, they may now experience new misconduct in the form of online harassment. An increase in several specific forms of harassment have already been observed:
- Obscene imagery as the background image or via screen sharing.
- Nudity or “Zoombombing” by participants or other parties during live video calls.
- Verbal harassment and abusive conduct in private chat or meeting rooms.
While professors may not be fully conversant with the remote learning technology being used, or have access to the same support while working remotely, they should be instructed to inform their students how to privately report remote or digital misconduct, to enlist TAs or other responsible individuals to monitor chats, and to remind students to take screenshots of offensive or abusive conduct so that appropriate steps can be taken to curb the behavior. While the definitions of conduct that potentially violate Title IX may take a different form during distance learning, your institution’s obligations to prepare for and prevent harassment has not changed.
New Title IX Rules Released in May During a Global Pandemic
Graphic from Equal Rights Advocates.
While institutions were scrambling to transition to remote learning, parties in Title IX cases have been left hanging while proceedings have been postponed or delayed indefinitely, Education Secretary Betsy DeVos did not choose to delay the release of significant changes to Title IX due to the global pandemic. Instead, Secretary DeVos forged ahead, even after requests to delay the rulemaking process, by releasing the new rule on May 19, 2020. While perhaps DeVos was hoping these changes would slip by unnoticed in the COVID chaos, Title IX advocates long awaiting the outcome of this rulemaking process have sounded the alarm and have already filed a lawsuit intended to prevent these new rules from going into effect in August.
One might have hoped that with the increased attention the #MeToo movement has focused on campus sexual assault over the last several years, we would see improvements that seek to rectify the incalculable number of egregious violations identified at campuses over the last several years. No competent higher ed administrator should be unfamiliar with what student survivors experienced, for example, at Michigan State University (Larry Nassar), University of Southern California (George Tyndall), and Ohio State University (Richard Strauss).
Despite over 120,000 comments received from stakeholders, and a rulemaking process that has been ongoing since 2017, Title IX and student survivor advocates almost universally agree that the new rules do not improve Title IX’s protections for those who have been harassed and assaulted. While a full exploration of all the new changes is beyond the scope of this article, and those changes may not go into effect until this August pending the lawsuit’s outcome, there are some specific ways that institutions may maintain more survivor-friendly protections without running afoul of the new rules.
A Few Silver Linings in the New Provisions
Administrators with genuine concern for those who have been assaulted or harassed may share advocates’ and survivors’ alarm with the breadth and scope of the new provisions. As institutions continue to assess the fallout from a Title IX gutting that was part of Secretary DeVos’ political agenda, Title IX still exists, students will still experience sexual violence and thus have the need for its protections, and there is still an expectation of business as usual in an environment that will be anything but this fall semester.
While there are but a handful of silver linings in over 2,000 pages of the new rule, administrators can and should grasp what few protections there are and employ what little discretion they have left to protect their students until the lawsuits are over, a subsequent administration undoes this rulemaking, or there is greater clarity as to how to effectuate Title IX’s purpose.
Institutions can still use the “preponderance” standard of evidence.
Graphic from Equal Rights Advocates.
As part of #MeToo’s push to #BelieveWomen, it has been argued that a more strict standard of evidence than the preponderance standard used in civil lawsuits tilts the playing field in favor of the accused. The ”more likely than not” standard, often expressed as the slightest of tips or 50.00001% in favor of the moving party’s credibility, still permits believing the reporting party. If your Title IX process has already adopted this evidentiary standard, you may and should keep it.
Mediation and other informal processes are now permitted.
While previously reporting parties could not be required to engage in mediation, due to the perception that vulnerable survivors would be involuntarily pressured to confront the individual who harmed them, now mediation is an option, as long as the accused is not an employee. Both parties must voluntarily agree, and the process must be led by a trained facilitator. However, those who currently choose not to report sexual misconduct because they are reluctant to participate in a lengthy investigation or concerned about a harsh penalty may be more willing to come forward if there is an informal option for resolution. Accused students also may be more willing to cooperate, apologize, and accept responsibility in a less adversarial or punitive framework. Institutions must still take great care to avoid the temptation to save money by pressuring survivors into an informal process, but given the increased procedural requirements under the new rule, a less formal resolution may be more appealing to all parties.
Prevention efforts are not impacted by the Title IX changes.
All of the changes to Title IX proceedings do not kick in until harm has already occurred, while unfortunately it will take significantly more harm than before to prevail. We can all acknowledge that the kind of traumatic harm Title IX prohibits is something that we would never want to have happen in the first place, and if it could be prevented, that would be ideal. Institutions need to focus on how new remote learning and social distancing mores will impact the physical proximity necessary for sexual assault, especially while on-campus alcohol consumption will either be eliminated or dramatically reduced, and tailor their prevention efforts to the “new normal.” By employing non-Title IX alternatives to report and address misconduct, and eliminating some of the most common environments where the most serious misconduct takes place, a significant reduction in Title IX proceedings does not have to represent an abandoned institutional commitment to protecting students from harm.
While overburdened administrators continue to grapple with seriously depleted budgets, major uncertainty about how fall semester classes must be conducted, and drastically altered operating procedures mandated by the coronavirus pandemic, they have also been gifted with another set of major changes that could impact legal compliance, student safety, and ultimately the reputation of their institutions.
While neither the timing nor the substance of these Title IX alterations could ever be considered ideal, your institutions will be called upon to shift your efforts towards prevention rather than waiting for an even more significant amount of harm now required to trigger Title IX protections. There will undoubtedly be fallout-—political and administrative-—over the next several years, but now is not the time to neglect your institution’s efforts to guarantee all students a safe campus environment. Those efforts will be more important than ever now that survivors are no longer nearly as willing to remain silent after being subjected to sexual violence, and demand more accountability from their educational institutions when their learning environment is unsafe.
*For additional information about best practices for Title IX proceedings during the pandemic, please see Equal Rights Advocates’ Guidance for Title IX Administrators During COVID-19.
About the author
Paula Brantner is the president and principal of PB Works Solutions, which builds harassment and toxic workplace prevention systems that reflect your values and transform your culture. She works with nonprofits, small businesses, unions and political organizations on training, reporting and policy development to ensure objective reporting and a harassment-free environment. She is also working with a national political organization to build a nationwide harassment reporting and grievance program that is the first of its kind, and was the coauthor of model anti-harassment guidelines for political campaigns released by the organization Ultraviolet. Last year, Paula wrapped up 18 years (including eight as executive director) with Workplace Fairness, a legal nonprofit that educates workers about their legal rights in the workplace, primarily through the award-winning website www.workplacefairness.org. An employment lawyer for over 27 years, Paula has degrees from UC-Hastings College of the Law and Michigan State University’s James Madison College.