Title IX: New Rules and Realities

By Eesha Kashif

There is a lyric from an old song that goes “Do you know what it’s like to not know a single thing about yourself and it’s all your fault”. Thanks to the unprecedented circumstances in light of the outbreak of COVID 19, I have been reflecting deeply on the ways in which this pandemic has affected my life. So every time I hear the song, while the part about not knowing anything about myself anymore sounds terrifyingly accurate, the part about it being my fault does not resonate so much.

After all, how many people actually anticipated being locked up in our homes and restricted from leaving our houses, gathering in public spaces, or performing everyday chores like going to get groceries without wearing a face mask? The uncertainty has taken everyone by storm, but some of the most adversely affected individuals are the victims of Title IX violations, especially following the complete transition to online learning routines.

On May 6, 2020, the US Education Department issued a rule asking universities and schools to change their Title IX policies, processes, and personnel, as many schools remain closed or in remote-learning status through the fall too. The changes were broadly divided into two categories: “(1) when does a school have responsibility to take action when a report of sexual harassment is made; and (2) when a school takes action, what must it do?” (Dorsey & Whitney LLP).

To analyze the first category, let us look at how the definition of “sexual harassment” has changed according to this new rule. Based on this rule, it is defined as “any unwelcome conduct that a reasonable person would find so severe, pervasive and objectively offensive that it denies a person equal educational access”. The new rule limits the scope of conduct that is considered harassment by requiring a reasonable claim that the conduct tangibly led to the denying of educational access. However, it explicitly states that “Stalking, domestic violence, and dating violence, however, are explicitly included as types of sexual harassment under Title IX”.

Now, as theoretically clear and unequivocal I believe the rule seems in terms of explaining the “types” of conduct that qualify as sexual harassment – I cannot help but bring up the various questions that surface. In universities that follow a completely online mode of teaching, how does sexual misconduct be identified?

For example, if a student sends unsolicited pictures to another student that clearly includes sexual innuendos during classes on Zoom, does that fall under the umbrella of the defined behavior? Similarly, taking pictures of another student’s face or body, without their knowledge or consent, through their Zoom video and circulating those sensitive pictures to one’s friends during a class session also sounds like a violation of conduct. But then the million-dollar question is, where are such behaviors explicitly mentioned as sexual misconduct and to what extent (if at all), do the rules or policies regarding Title IX violation apply in these particular cases?

The unfortunate consequence of this new rule is that all such instances have been heavily ignored, as a result of which, schools are increasingly unclear about the way forward with such cases. Consequently, institutions “must choose what burden of proof will apply to sexual-harassment proceedings”.

The second aspect of this discussion emphasizes the fact that schools still do have some control over the implementation of strategies that will prevent the increase of Title IX cases in an online setting. As part of their prevention plans, “Schools must plan for more complex hearings, including establishing procedures for how hearings will be conducted. Additionally, schools must prepare to conduct training for all employees and persons with Title IX responsibilities, as hearings must be free of bias and conflicts of interest”.

While it is obvious that preliminary level staff training and establishment of a framework regarding the execution of Title IX cases in cyberspaces is a step forward, it is surely not going to be an overnight process. Even after new policies are introduced, outlining the ways to deal with cases of sexual harassment by students in remote settings, the continued and effective implementation will perhaps prove to be the biggest challenge. As universities and schools resume classes in the fall of 2020, Title IX cases, which are already a sensitive and often traumatizing topic for many, will perhaps become more difficult to navigate in the near future, in light of the growing challenges posed by a structural transition to remote learning environments.

References

https://www.dorsey.com/newsresources/publications/client-alerts/2020/05/new-title-ix-rule