Title IX Rollbacks: Has The #MeToo Backlash Begun?¹
Kimberly Churches, AAUW CEO
The #MeToo Movement was supposed to be a watershed moment. No longer would we sweep accusations of sexual assault under the rug. No longer would we blame assault survivors for how short their skirt may be. Or if they had been drinking. Or if they might have flirted. We would stop making excuses for an assailant for being generally a good guy whose future could be ruined. And we’d worry less about how assault statistics could blemish a school’s reputation and more about how sexual trauma could affect a woman’s life. But here we go again: The U.S. Department of Education has rolled back Title IX protections against campus sexual harassment and assault. The new rules turn back the clock, reversing policies that were put in place to make it easier for survivors of sexual misconduct to come forward. These rules stack the deck against survivors, making it too onerous, even traumatic, for many to come forward.
Even with protections in place, it’s never been easy for sexual assault survivors to speak out: 89 percent of colleges reported zero rapes and 79 percent of middle and high schools reported zero cases of sexual harassment, according to a study by AAUW. Yet the Bureau of Justice Statistics finds that one in five women experience sexual assault or violence while in college. Obviously, these numbers don’t align. Forces of institutional self-protection, along with the hurdles and burdens preventing survivors from pursuing justice, already get in the way.
For a time, it seemed that Title IX could offer welcome recourse for survivors. Created nearly a half century ago to ensure all students had access to an education free of gender discrimination, Title IX governs not only athletics (with which it’s often associated) but actually all things gender equity on campus. Guidelines to Title IX, adopted in 2011, made it clear that colleges needed to utilize the law to battle campus sexual misconduct —or risk losing federal funding. A Troubling Return To The Past Now, those guidelines have been overturned and replaced with rules that sound archaic. There is no other way to interpret them other than they are intended to deter survivors from reporting issues, including:
• Allowing universities to hold trial-style hearings where the survivor of sexual harassment or assault could be subjected to live cross-examinations by representatives of the accused.
• Changing the definition of sexual assault and violence on campus from “unwelcome conduct of a sexual nature” to conduct that is “severe, pervasive and objectively offensive that it denies a person access to the school’s program or activity.”
• Letting universities choose the standard of proof to use – either “preponderance of the evidence” or a higher bar of “clear and convincing evidence.”
When these rules were proposed last spring, they drew much criticism from educators, gender advocates, survivors and others. In fact, more than 125,000 people and groups weighed in during the public comment period, most of them opposing the rollback. Still, the Administration is moving forward; so the question now is how can we ensure that survivors retain the protections they need?
What We Need To Do
Our goals should be clear: First to prevent sexual harassment and assault, and when it does occur, to have fair and just systems in place – for both the accused and survivors. Prevention starts with changing campus culture. This means modernizing all policies and practices on campuses that perpetuate bias and diminish anyone based on gender. We need to foster more equitable and respectful environments in all regards; by leveling playing fields we’ll shift power differentials and discourage tolerance for unacceptable behavior.
We must all be upstanders, not bystanders, speaking up when individuals are behaving inappropriately, when people are being unduly pressured or when someone needs support and encouragement for reporting harassment or assault.
Campus administrators can – and should — choose to continue following more modern and acceptable practices that treat survivors appropriately, with understanding and respect. Many colleges and universities said they plan to maintain current practices, such as keeping the unwelcome conduct standard, not only because it is the right thing to do, but also because it will reduce their potential legal risks. And we must double down on our efforts to reverse the rule change and to advocate for new legal protections that represent best fair policies and practices. The momentum unleashed by the #MeToo movement cannot be contained. We have learned the lessons: We will not pause. We will not be silenced. We will not tolerate pushback against the progress we have made. We may have lost this battle, but we are winning the war and will continue fighting until we achieve gender equity, the full promise of Title IX.
1 Originally published on February 27, 2020, the text has been updated to reflect that the final rule, then a proposal, has now been adopted.