In 2016, Michigan State University gymnast Lindsey Lemke told her coach, Kathie Klages, that she had been sexually abused by Larry Nassar, a doctor in the school’s athletic department. Klages didn’t report Lemke’s allegation to anyone.
In 2017, three Baylor football players allegedly raped two female Baylor students at an off-campus apartment. In this case, the players were separated from the team at the time of the allegations and eventually suspended.
In both of these headline-grabbing cases, the abused students were able to avail themselves of Title IX protections in reclaiming their safety. And according to new Title IX guidelines proposed by Secretary of Education Betsy DeVos, it’s possible that very soon, neither of these things will be considered Title IX violations by the federal government.
“For me, in the sports sector, what she’s proposing is the worst-case scenario,” Brenda Tracy, a survivor, activist, and founder of #SetTheExpectation, told ThinkProgress.
From the moment DeVos took office, she has had her eye on reforming Title IX, the federal law established in 1972 to prevent discrimination on the basis of sex in schools that receive federal funding. While the law has been most closely associated with providing women access to athletic programs on the high school and collegiate levels, Title IX also provides that discrimination on the basis of sex can also include sexual harassment, rape, and sexual assault.
In 2017, DeVos rescinded policies on campus sexual assault put in place by President Barack Obama in 2011 in the form of a “Dear Colleague” letter. That Obama-era guidance set out to address growing concern about the prevalence of sexual assault on college campuses — according to RAINN, 23 percent of women and 5 percent of men on college campuses experience rape or sexual assault. But DeVos was among those who thought Obama’s policies stacked the deck against the people — primarily college-age men — who were accused of sexual assault.
In late 2018, Devos issued her own Title IX guidance, to the immediate alarm of advocates for sexual assault survivors and women’s rights groups. Among other things, the Devos rules restricts the scope of what counts as sexual harassment, limits the types of school employees responsible for reporting sexual assault, and narrows the very definition of what, exactly, counts as a campus sexual assault.
More than 100,000 people left public feedback for DeVos and the DOE about these proposals during the 60-day “notice and comment” period. Due to technical difficulties on the final official day of the comment period, there will be one more opportunity to provide feedback on Friday, February 15.
It’s safe to say there’s a true sense of panic about what these proposals would mean in practice. “These new regulations are focused on protecting abusers and protecting the educational institutions,” Linda Correia, a nationally recognized Title IX litigator, told ThinkProgress.
Off-campus assaults don’t count
One of the primary concerns with DeVos’s proposed regulations is a section that says institutions will only be required to investigate Title IX violations if they occur during campus-sanctioned activities and events.
The ambiguous wording of the guidance leaves its exact implementation a bit up in the air. But Correia views this as a dangerous designation that goes against precedent built up over time, both in regards to Title IX, as well as Title VII laws about workplace harassment.
“So a student who lives off campus and rapes a student in his room, the school has no responsibility to do anything,” she said. “And somebody who is assaulted in a bar that is adjacent to the campus, or right across the street, like at [Florida State University]? No responsibility.”
Tracy, who focuses her work on educating student-athletes — primarily, but not exclusively, football and men’s basketball players — sees this as a “nightmare” rule for athletics. It could prevent schools from investigating sexual misconduct that occurs while teams are playing away games, or partying at off-campus apartments where many athletes live and congregate.
Tracy has dedicated herself to ensuring that schools and student-athletes are accountable for their actions. Now, these new guidelines threaten to muddy the waters, and provide additional loopholes for school administrations that would prefer to look the other way on matters of sexual misconduct and violence — particularly those incidents that involve star athletes.
“It’s erasing everything we’ve been trying to do,” Tracy said. “It’s been an uphill battle anyways, and she’s like, we’re going to make it harder now. For me, it’s devastating.”
Coaches and trainers aren’t mandatory reporters
Of course, the biggest sexual assault scandals in college sports don’t merely involve the abusers themselves; they’re also about the systems around them that enable such abuse. More than a dozen coaches, trainers, or relevant officials at Michigan State were told about the sexual abuse that former gymnastics doctor Larry Nassar meted out over a 20-year period; but the majority of those with the responsibility to report the misconduct to other school officials failed to do so, which in turn allowed Nassar to continue to have access to hundreds of victims.
At Baylor — where, according to one lawsuit, 31 football players were accused of committing 52 rapes at Baylor in a four-year period — it was reported that former head football coach Art Briles, along with many other Baylor officials, knew about the predatory behavior and culture of abuse among their players, but allowed it to persist nonetheless for the sake of winning football games.
Under these new Title IX guidelines, none of that would be seen as a violation.
That’s because, according to DeVos’s proposal, a Title IX report is only considered official if it is delivered to someone with the “authority to institute corrective measures.” While the rules aren’t completely clear about who, exactly, that would be, advocates such as the experts at the National Women’s Law Center believe that on the collegiate level, it would only entail the Title IX coordinator.
This is bad for survivors, who might feel more comfortable confiding in people like their resident advisers, trainers, or coaches, after being assaulted. Under Devos’ new guidance, it would be no longer mandatory that these campus officials report such allegations, unless the individual schools make their own rules mandating otherwise. In short, the guidance very neatly creates another unnecessary barrier of bureaucracy to stand in the way of justice and accountability.
“A coach could find out that someone was assaulted by an athlete, and just decide to keep it to themselves,” Correia said. “Or if you’re the new trainer or assistant trainer who is thrilled to land a job at a major football or basketball program, and don’t want to create a stir, you’re going to keep that allegation to yourself.”
“These regulations will have a negative effect that will allow students and student athletes be less likely to be held accountable.”
Hearings for survivors will be more traumatic
But let’s imagine a scenario in which a sexual assault or rape takes place in a location deemed to be “on campus” and require a school to investigate, and in which the survivor is able to track down an authority figure in order to make an official report. The matter now proceeds to hearings, which tend to already be a harrowing and traumatic experience for survivors. Thanks to DeVos new rules, the possibility of retraumatization has only intensified.
First of all, under the new rules, meeting the burden of proof in sexual misconduct cases is considerably more difficult than it was previously. The Obama-era guidance said that schools had to decide on cases based on the “preponderance of the evidence” qualification, which is a lower burden than “clear and convincing evidence.” But last year, when DeVos revoked Obama’s rules, she gave the schools the opportunity to decide on their own standards. Needless to say, those standards have tended to swing in an unfavorable direction for the victims of such crimes.
“Giving the institution that might be liable the chance to decide for itself, what burden or standard of evidence they want them to follow — most likely you are going to choose a higher standard because you want it to be harder to find [someone] responsible,” Correia said.
Perhaps the most troubling aspect of DeVos’s proposed rules is the guarantee that someone accused of sexual assault will have the right to cross-examine their accuser during the hearing. That is to say, a rape victim would have to allow their accused rapist the option of questioning them directly in a formal hearing in order for those proceedings to count as due process.
“For a lot of survivors, that will prevent them from even reporting,” Tracy said.
In the past few years, thanks to the #MeToo movement, as well as several high-profile sexual assault cases in college athletics, more survivors have opted to come forward and pursue justice. Since the criminal justice system is often ill-equipped to handle these cases in a timely manner, it has been vitally important for colleges to have their own policies and procedures, so that survivors aren’t trapped in a scenario where they’re paying to attend classes or live in campus housing alongside their abusers. Title IX, while not always perfectly interpreted or executed, was nevertheless ably providing the framework necessary for the survivors of sexual violence to continue their studies while the wheels of justice slowly spun.
But, now that DeVos has changed the rules, shifting the priority from the provision of a safe learning environment for survivors to easing the burden on institutions and abusers, that framework just got a lot more flimsy.
“I feel like we just got in the car and barely started to drive, and now she says, we’re going to go take the car and crush it to smithereens,” Tracy said.