DeVos' Title IX rule has had a ‘chilling effect’ on misconduct reporting, advocates say
DeVos' Title IX rule has had a ‘chilling effect’ on misconduct reporting, advocates say

Bianca Quilantan

Dharma Koffer broke up with her college boyfriend while attending school in rural Idaho. For two years after, he enrolled in her classes, started a new job where she worked, joined the same school clubs, parked next to her at school and began going to the gym at midnight — the same time Koffer would go.

She reported this as stalking to her school and explained the relationship had ended because of emotional abuse. At first, the school granted a mutual no-contact order and Koffer would record violations. But when then-Education Secretary Betsy DeVos rolled out her Title IX rule in 2020, which mandates how schools must respond to reports of sexual misconduct, Koffer said her school could no longer assist.

“When new regs went into effect, my school just kind of stopped helping me,” said Koffer, who is now a policy organizer at Know Your IX, which advocates for victims of sexual misconduct. “It wasn't severe, pervasive and objectively offensive enough, I guess, to be considered worth something the school needed to act on.”

The school told Koffer it was a small campus and they couldn’t limit the student’s rights. So she dropped out of the clubs she was in, including one her scholarship relied on, she resigned from the job, her grades sank and she said she endured the stalking until she graduated.

The Biden administration is expected to overhaul much of the DeVos-era rule in the coming weeks that Koffer, other students and Title IX administrators say has muddled the process for helping students experiencing sexual harassment and misconduct in school. But for many, it’s too late to receive help.

The rule has exacerbated wait times for resolutions to complaints, with students waiting months or years, critics say. And its court-like hearings and narrower definition of sexual harassment has deterred many students from filing formal Title IX complaints — a fear advocates expressed when DeVos first unveiled her rule.

“The effect is what we suspected it would be: We've seen a decrease in the number of people willing to go through the formal process because it's so cumbersome, and it isn’t user-friendly in any way,” according to Brett Sokolow, president of the Association of Title IX Administrators. “I would say at least 70 percent of our complaints are going through informal resolution.”

Key context: Most colleges implemented the DeVos-era rule, Sokolow said, despite several higher education groups urging the department to suspend it during the Covid-19 pandemic. Sokolow, who is also serving as a Title IX administrator for one of his consulting clients on an interim basis, said at least two Title IX hearings take place each week.

“We've seen a lot more people turning to informal resolution, both because it's now available under the regulations and because it's an alternative to having to go through what seemed like a much more unpleasant process,” he said.

Democratic lawmakers and advocacy groups have been pressing the Education Department to reverse the rule quickly, though the Biden administration has now delayed the new rule's release until June. “These regulations gut protections for survivors of sexual violence and overburden already-strained schools struggling amid a global pandemic," 115 Democrats wrote in a letter last year.

Supporters of the DeVos rule, however, are urging the Education Department to leave the rule alone. A coalition of 26 organizations, led by the Defense of Freedom Institute, an advocacy group led by former DeVos Education Department officials, sent a letter in April to Catherine Lhamon, the assistant secretary for civil rights, urging the Education Department to halt its plans to unveil a new Title IX rule.

“To date, neither the White House nor ED has pointed to any plausible reason why it might be necessary to amend the 2020 Rule,” they wrote, adding that the rule has survived a barrage of legal challenges. They said it bolsters due process protection for both the complainant and the respondent. The groups also want to ensure that a religious exemption will remain intact.

Even if Education Secretary Miguel Cardona's proposed rule is released next month, it would likely take several months to finalize, said Shiwali Patel, director of Justice for Student Survivors and senior counsel at National Women’s Law Center. And until the new rule is enforceable, she said, a “chilling effect” will remain on students' reporting of misconduct.

“This fear of going through the live hearing with direct, live cross-examination has deterred some students from moving forward on their formal complaint,” Patel said.

“For students who have experienced sexual harassment and it's not considered severe enough or maybe they occurred at a private, off-campus party — even though they're seeing their rapists on campus — at some schools, students are still not getting any protections at all because their schools can't respond under Title IX,” she said.

What’s next: Meetings on the proposed rule were scheduled through May 20, though the Biden administration did not have to wait until the meetings were over to unveil the rule. The proposal is expected to be announced sometime in June.