“The new rule approved this week favors reported perpetrators of sexual harassment, abuse, and assault and sets survivors up for stigma, re-traumatization, and silencing.” 

As will come as no surprise to his critics and detractors, last week the administration of President Donald Trump swung a hatchet at the 1972 law that prohibits sex-based discrimination at colleges and universities that receive federal funding. As Ms. reported:

The Trump administration finalized new Title IX sexual harassment regulations that give unprecedented procedural protections to students facing school discipline for sexual misconduct—protections that students facing other kinds of school misconduct charges are generally not granted.

The regulations now make it much harder to discipline students accused of sexual misconduct than those accused of other much lesser serious infractions, such as plagiarism or substance abuse on campus. 

Vanita Gupta, president and CEO of the Leadership Conference on Civil and Human Rights called the Trump administration policy “an abomination” and “the antithesis of what Title IX was intended to do.” 

Locally, the Boston Area Rape Crisis Center condemned the move right away, informing people in its network about what’s at risk.

“The new rule approved this week favors reported perpetrators of sexual harassment, abuse, and assault and sets survivors up for stigma, re-traumatization, and silencing,” BARCC Executive Director Gina Scaramella said in a statement. “The limitations established by this rule significantly reduce survivors’ ability to access remedies, will make educational institutions less safe, and will have a chilling effect on survivors reporting.”

According to BARCC, the Title IX rule change will do the following:

• Make it more difficult for a survivor to access Title IX remedies by raising the standard of the impacts of sexual harassment.
• Eliminate, for all practical purposes, ways to hold schools accountable when they fail to take Title IX complaints seriously by reducing the standard to which schools will be held (action can’t be taken unless a school’s response to Title IX complaints is“deliberately indifferent”).
• Absolve school of responsibility in cases where the school doesn’t exercise “substantial control,” which could include incidents between students that take place at off-campus housing, high school house parties, bars, private off-campus events, or within study abroad programs.
• Mandate that grievance proceedings in higher education include live cross-examination that may be conducted by an outside advocate or attorney, and allow K–12 schools the discretion to include cross-examination. Cross-examination is unnecessary given that campus proceedings are not criminal legal trials, and they can re-traumatize someone who has been sexually assaulted.
• Allow mediation, which, unlike restorative justice, is inappropriate in situations of sexual assault.

“Taken together, these changes will roll back years of progress that schools nationwide have made in changing campus culture around sexual assault and harassment,” Scaramella added. “Not only that, these final regulations have been released in the midst of a global pandemic, when schools are already struggling in many ways—and schools are supposed to be putting the new regulations in place by August.”

Attempting to “mitigate the local impact of the new Title IX rule” BARCC is supporting three bills currently in front of state lawmakers:

• The Healthy Youth Act will give Massachusetts students the foundation they need and deserve to lead healthy lives. By providing comprehensive sexual education that is focused on consent, schools can help prevent and reduce sexual assault and harassment.
• The Campus Climate Survey bill would require colleges and universities to conduct a standard sexual misconduct climate survey every two years. The current lack of accurate data makes it difficult to address campus sexual assault and harassment at the scope and level needed to make sustainable change. We know that sexual assault is an under-reported crime, and these low reported numbers provide campus communities with a false sense of security. Accurate data will support more effective campus practices and policies to prevent and respond to sexual assault and harassment.
• The Sexual Violence on Higher Education Campuses bill requires colleges and universities to train students, faculty, and staff on consent and on ways to intervene when they witness inappropriate behavior or misconduct. It mandates that institutions clearly communicate the policies, procedures, and resources related to sexual assault and harassment to students on an annual basis. It also stipulates that schools have a confidential resource advisor to help students know their rights and navigate their options. 

“Even with this progress, sexual harassment, abuse, and assault remain a serious problem for students of all genders, with 11 percent of undergraduate and graduate students experiencing sexual violence through physical force or incapacitation,” Scaramella said. “We know from our work that most of these assaults are never reported and that it is not at all uncommon for survivors to become depressed and anxious, fall behind in their school work, and even drop out of school.”