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As Education Department Prepares to Release Highly Anticipated Title IX Rules, Dem Bill Offers Last-Ditch Effort to Shut Them Down

U.S. Rep. Elissa Slotkin (D-MI). (Zach Gibson/Getty Images)

Democratic lawmakers have mobilized a last-ditch effort to stop the release of controversial federal rules that govern how schools across the country must respond to sexual misconduct complaints.

The from four Democratic congresswomen aims to halt the release of highly anticipated regulations expected soon from the Education Department that would bolster the due process rights of students accused of sexual misconduct.

Draft regulations released last year would make several controversial changes to the way schools must respond to misconduct complaints under Title IX, the federal law that prohibits sex discrimination in education. Released last week, the Democratic bill would prohibit Education Secretary Betsy DeVos from implementing rules 鈥渢hat weaken the enforcement鈥 of Title IX. The bill would likely face steep opposition from the Republican-controlled Senate.

鈥淚t鈥檚 as if fraternities around the country drafted this rule,鈥 Rep. Jackie Speier, a Democrat from California and co-author of the bill, said in a media release. 鈥淭he bar for proving sexual violence will be so high that survivors will be discouraged from coming forward and schools will once again be able to sweep allegations under the rug.鈥

The Education Department鈥檚 draft regulations, which narrow the definition of harassment and allow schools to adopt a higher standard of proof, offer a significant policy shift from Obama administration guidance. Once released, the final regulations will likely face lawsuits. Conversations over campus sexual harassment generally center on colleges, but the rules also apply to K-12 schools 鈥 which have聽faced their own challenges in combating abuse.

For Rep. Elissa Slotkin, a Democrat from Michigan, concern over the proposed regulations centers on Michigan State University, located in her congressional district. The proposed changes, Slotkin said in the news release, would negatively affect survivors abused by convicted sex offender Larry Nassar, a former doctor for the American women鈥檚 gymnastics team and Michigan State University associate professor. In September, the Education Department fined the university聽 for its failure to address sexual abuse claims against Nassar.

The Education Department recently confirmed that it aims to release the final regulations by the end of the fall semester. However, the White House Office of Management and Budget, which reviews proposed regulations before they鈥檙e finalized, has聽 on the issue until early February 2020. Among groups scheduled to meet with the office are the National Center for Youth Law, a vocal critic of the proposed rules, and National Coalition for Men Carolinas, which supports the changes. The office is also scheduled to meet with leaders at multiple universities and the Los Angeles Unified School District.

Proponents of the proposed regulations say they鈥檙e a victory for student due process rights. Among changes in the draft regulations, schools would be able to choose a standard of proof 鈥 either 鈥渃lear and convincing鈥 or 鈥減reponderance of the evidence鈥 鈥 to adjudicate misconduct cases. Under Obama-era rules, schools were required to use the lower 鈥減reponderance of the evidence鈥 standard. Under the proposed regulations, schools can use that standard only if it is applied to all student misconduct. Critics say that change, among others, could discourage victims from reporting abuse.

Elizabeth Tang, the counsel for education and workplace justice at the National Women鈥檚 Law Center, said the legislation sends 鈥渁 clear message鈥 that the proposed regulations 鈥渁re harmful and illegal.鈥

鈥淭he Department of Education鈥檚 dangerous goals are not a secret, as it has explicitly stated that its goal is to reduce the number of sexual harassment investigations conducted by schools,鈥 Tang, whose law center helped Slotkin鈥檚 office draft the legislation, told The 74 in an email. 鈥淲e cannot allow Secretary DeVos to sweep sexual harassment under the rug and to make it harder instead of easier for student survivors to come forward.鈥

In the Nassar case, victims often reported abuse to athletic personnel, staff and others they trusted. If the proposed rules had been in place at the time of the Nassar case, Michigan State wouldn鈥檛 have been required to respond to several key incidents, according to Slotkin鈥檚 office. Current department policy requires schools to address harassment if a student reports an allegation to a 鈥渞easonable employee.鈥 The proposed regulations require students to report allegations to a Title IX coordinator or a school official with 鈥渁uthority to institute corrective measures.鈥

Critics of the proposed regulations made a similar argument after an Education Department investigation found that Chicago Public Schools failed for years to address sexual misconduct. Under the proposed regulations, for example, the Chicago district wouldn鈥檛 have been required to intervene when a teacher assaulted a student in his car, according to the critics.

It remains unclear, however, how the final regulations will differ from the proposed rules. Citing anonymous sources in a story last month, The Washington Post reported that the final rules will retain聽. Among them is a provision that would allow college students accused of misconduct to cross-examine their accusers. An Education Department spokeswoman declined to comment on the final rules or legislation.

However, the Post noted that the Education Department is expected to step away from a proposed rule that would hold institutions responsible only for incidents that occur on campus or during school activities. That proposed rule, Slotkin鈥檚 office noted, would have required the university to ignore Nassar鈥檚 off-campus misconduct.

Still, Tang said the proposed regulations could be particularly harmful for students in K-12 schools. While it鈥檚 difficult to report abuse at any age, it鈥檚 particularly difficult for younger children, she said.

鈥淚f the rules go into effect, schools will be legally allowed to ignore all sexual harassment that is not reported to a small set of high-ranking school employees,鈥 Tang said. 鈥淭hat means a K-12 student will not be entitled to any help if they tell a guidance counselor they were raped by a classmate, or if they tell a teacher that they are being sexually abused by another teacher.鈥

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