#HandsOffIX: Proposed Changes to Title IX Fail Sexual Assault Survivors

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Betsy DeVos, the United States Secretary of Education, has proposed changes to Title IX, a federal civil rights law which is meant to protect students from sex discrimination within education programs. These changes would severely undermine the rights of sexual assault survivors. Shiwali Patel with National Women’s Law Center helps us understand the dangers these changes to Title IX may bring.

Title IX has broad coverage, and includes everything from admissions and recruitment to financial aid, housing, and requiring schools to respond to sexual harassment by taking certain actions. All students and employees are protected, and Title IX covers kindergarten through higher education. It’s important to keep in mind that Title IX covers schools that are funded by federal programs, which applies to almost all universities because they receive federal grants. For K-12, however, private schools are not typically covered by Title IX.

Title IX isn’t just for college students; the proposed changes to Title IX are concerning in when we know that nearly 1 in 5 girls ages 14-18 report being kissed or touched without their consent. Sexual harassment can be a number of things, including unwelcome conduct of a sexual nature, physical or verbal misconduct, and sexual assault, among other forms. Title IX covers a lot of this behavior, which is why it is of utmost importance for schools to respond appropriately in these situations.

While in college, 1 in 5 undergraduate women will be sexually assaulted, 1 in 18 men will be sexually assaulted, and 1 in 4 transgender or non-binary students will be sexually assaulted. While it is extremely prevalent, about 88% of on-campus sexual assaults are not reported at all. Title IX does not require sexual assault survivors report to the police, and many students often feel uncomfortable approaching the police about their sexual assault for fear of perpetuated myths or re-traumatization. The school itself is the only entity that is mandated to respond to a sexual assault under Title IX. These accommodations may include changing a student’s housing, changing a student’s classes, or offering extensions on assignments and exams for someone who needs it.

The changes being proposed to Title IX would make schools more dangerous for students, tilting the scales in favor of named harassers if the school would decide to investigate. In fact, before a grievance process would even begin, these changes would essentially force a school to ignore any assault or harassment that has taken place.

The new proposed rule would require schools to ignore sexual harassment cases until the harassed student has been denied equal access to education, which the school would likely interpret as truancy, missing classes, or dropping out. This would mean that a student would have to feel so unsafe that they refused to enter their school. If a school’s sexual harassment case fails to meet this narrow standard, then it will be dropped. On top of this, only a small subset of school employees would be responsible for addressing harassment, meaning a school would not be need to address harassment unless there is knowledge by the Title IX coordinator only (this doesn’t include other teachers or professors, coaches, resident advisors, etc.) Schools would also be required to dismiss a complaint of the student in question states that the harassment occurred outside of a school activity, which would include off-campus housing or fraternity houses that aren’t considered part of an educational activity.

If there is an investigation, there are a multitude of processes that the school is required to implement. Institutions of higher education will require a live hearing allowing victims to be cross-examined during the live hearing.

Ultimately, letting these proposed changes go into effect would send the message that sexual assault and harassment victims on school campuses don’t matter, and that they aren’t protected by their schools. It will impact whether students report their harassment and assault.

The good news is that these are not the final rules, yet and there is still time to take action to stop them from going into effect.

Links from this episode

NWLC on Facebook
NWLC on Twitter
More information on Betsy DeVos’ Title IX Attacks
NWLC petition
NWLC comment guide
Respect Students resource guide

Transcript

Jennie: Welcome to rePROs Fight Back a podcast on all things repro. I'm your host Jennie Wetter. In each episode, I'll be taking you to the front lines of the escalating fight over our sexual and reproductive health and rights at home and abroad. Each episode, I will be speaking with leaders who are fighting to protect our reproductive health and rights to ensure that no one's reproductive health depends on where they live. It's time for repros to fight back.

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Jennie: Welcome to rePROs Fight Back. In today's episode we're going to talk about Betsy Devos's, proposed changes to Title IX that would undermine the rights of sexual assault survivors. Helping me dig into this. I'm lucky to have with me today Shiwali Patel with the National Women's Law Center. Hi Shiwali. Thank you so much for being here.

Shiwali: Hi. Thank you for having me.

Jennie: Um, so this is a really serious topic, but I think before we can get too far in it, we really need to do kind of some scene setting so that everybody knows what we're talking about. So first, what is Title IX?

Shiwali: So Title IX is a civil rights law that protects students, um, from discrimination based on their sex. And, um, Title IX has a broad coverage. It covers admissions. Um, it covers recruitment, uh, financial aid, scholarships, facilities and housing. And it also covers sexual harassment. So under Title IX, there are requirements that schools respond to sexual harassment, um, by taking certain action. And, um, I know we're going to talk about this, um, and take a, you know, dive deeper into this issue, but, um, we're really concerned about what Betsy Devos is trying to do. She's essentially working to change the Title IX rules to make it to essentially force even schools to ignore sexual harassment.

Jennie: So who all is protected under Title IX?

Shiwali: Everyone, all students are protected. Um, employees, uh, are also protected by Title IX. I knew that. Yeah, a lot of people don't even think about employees being protected under Title IX, but they are, and they're also protected under Title VII from discrimination based on sex among other bases.

Jennie: Great. Um, so it, it's for all students, right? So it's going to be k through college.

Shiwali: Yes. Graduate School. So, graduate students, um, college undergraduate students and K12.

Jennie: So the issue we're going to focus on is sexual harassment. So maybe we want to talk about a little bit about what that means for, um, k through 12th.

Shiwali: Okay. Um, sure. So actually just going back, um, I should've mentioned that. Uh, it's also, um, Title IX covers schools that are funded by federal by the federal government, so they have to receive federal financial assistance in order to be covered by Title IX, essentially this covers all universities because they receive funding through grants and that's considered a form of financial assistance. For k-12, however, uh, private schools are typically not covered unless they receive money from the federal government. Um, but yes, we are very concerned because of the impact that this will have on all students. Um, we know in k-12 that um, nearly one in five girls ages 14 to 18 are kissed or touch without their consent. Um, the National Women's Law Center has done a survey on this. Um, we have reports, um, on the work that we've done addressing sexual harassment in K-12. Um, and sexual harassment can be many things. It is unwelcome conduct of sexual nature. It can be verbal, physical, it also includes sexual assault. Um, so it really covers a lot, a lot of behavior and unfortunately it's so prevalent and so important that schools respond appropriately to it.

Jennie: Um, so I know we're going to get to this in a second, which is sexual assaults on campus and I feel like that's finally getting the attention it deserves. But I feel like you really just don't hear about, um, the same like sexual harassment in k through 12 at anywhere near the same level. You don't hear it talked about.

Shiwali: That's true. I mean, a lot of the attention that, um, has been paid to this issue has focused on college campuses. And I mean, even in the media, we're hearing more about college campuses. The stories that we're hearing about. Um, whether it's about a student who's a named harasser or a survivor, complainant, oftentimes they are college students. And I mean, it's also of course very important to focus on that because we know one in five undergraduate women will be sexually assaulted and the number is much higher for sexual harassment. Um, but it is so important to focus on K-12 and, um, especially because we do, we focus on K-12 at the law center. We have, um, clients who are in high school who have been sexually assaulted and harassed where schools have just not responded appropriately, and students in K-12 are also pushed out of school because of sexual harassment. Um, and so it is important that we talk about that and I'm glad you've asked me specifically about K-12.

Jennie: Okay. So turning to sexual assault on campus, you started to get into that a little bit. Um, do you wanna talk about it a little more?

Shiwali: Sure. Um, so I did say that uh, about one in five undergraduate will be sexually assaulted, um, while in college. And there are many, um, reports and studies that have supported that figure. Uh, we know for, um, men, it's about one in 18 men and more than one in four transgender and non-binary students are sexually assaulted in college. And, um, so while it's, it's so prevalent, sexual assault is so under reported on campuses and schools, it's vastly under reported. It's about 88% of sexual assault on campuses are not reported.

Jennie: And is that in to the police or is that just reported at all?

Shiwali: Reported at all, which also includes to the police.

Jennie: I know that's been a big focus of like when you hear talking about, you know, sexual assault, they're really, um, the non feminist side is always like, well, they didn't report to the police. Um, but Title IX doesn't require that.

Shiwali: Exactly. And Title IX has a very different process, um, than the criminal process. And there are a lot of students who just for right reason, do not feel comfortable, do not feel safe um, involving the police. And the police historically have not always responded well, um, to survivors of sexual violence, often perpetuating some of the myths, um, that are really harmful and, and making the process even more traumatic for a survivor or retraumatizing. Um, and so there are many reasons and the school because of Title IX, because of how the school is a very unique place and separate from law enforcement, um, they are required to respond. The school is the only one, for example, that can provide accommodations like changing dorm rooms, changing classes, providing extensions on assignments and exams, um, for someone who needs it because of the trauma that they've endured after assault.

Jennie: You know, I think we had a big nationwide example of why women don't always come forward to report, um, following the Kavanaugh hearings and just seeing everything that Christine Blasey Ford went through.

Shiwali: Absolutely. I mean, that was really, really sad how everything played out. I mean, it took incredible courage to, for her to come forward. She really had nothing to gain. I mean, she continues to receive threats and it's just been really tough on her and her family and anyone watching her, which see how, I mean, first it was courageous, but how hard it was to talk about this. Um, and I mean it's, it's sad because of how things played out and how even if she was believed it wasn't enough.

Jennie: Um, and I think that just makes it clear that, you know, we need to make it easy for people to have someone that they feel comfortable reporting to, which is something I think we'll get into a little bit later that you're not going to want to go and talk to people that you're not comfortable talking to and then whether that's the police or if you have to go to your dean versus a teacher or something.

Shiwali: Right, exactly. I mean it's, it's can be really hard to report and there are a lot of reasons why survivors don't report. I mean, no, survivor is the same. Everyone is different, but there can be many reactions. You know, it can be fear, it can be shame. It can be because they were incapacitated at the time and don't remember all the details. It could be because of what we're hearing right now where there's so much victim blaming going on. And that just makes it harder to come forward. Living in this, you know, culture where there is victim blaming and it's not always, you're not always guaranteed to have a good positive response or a safe response. Um, and we know the majority of rapist, um, are someone known by the survivor and that can be really hard that someone that you may have trusted, have had a relationship with, could do something like this.

Jennie: Okay. So now on to the proposed changes. Um, so do you want to do a quick overview before we dig too deep on what the proposed changes are?

Shiwali: Sure. Um, so there, there are a lot of changes. Um, and just to say I guess a top line, yes. Um, these changes essentially would make schools more dangerous for students, um, and it would tilt the scales in favor of named harassers and in the grievance procedure if a school even decides to investigate. So there are substantive changes and there are procedural changes. Um, and just going back again to how this has been reported on by the media, um, what's been really frustrating for me as someone who has been so immersed in these issues and is that the much of the focus has just been on the named harassers and the grievance process and due process, right? That's always been the talk about that. But what is also not, first of all, there's a lot of false information there, which I'll cover. But what's also not discussed is the harm that's going to be caused if these final, if these rules go into effect because they would essentially force schools to ignore sexual harassment. So, I mean, this is before there's even a grievance process before the due process issue becomes an issue. This means that when sexual harassment is happening, schools often do not have to and will not actually will be required to not respond. So there are a few ways that this would happen. One is by the departments, um, changing the definition of sexual harassment that would require schools to ignore cases that are not, um, sexual assault. The sexual harassment until the harassed student has been denied equal access to education, which the school would likely interpret to mean missing classes dropping out of school altogether. So this would mean that someone would have had to already have, um, felt so unsafe that they're not going to come to school anymore before the school has to respond. But Title IX is a civil rights law. It requires equal access to education. The school is supposed to intervene before it gets that bad in the way they would do this is by changing the definition so that um, instead of sexual harassment being defined as what it is, which is unwelcome conduct of a sexual nature, it would be defined as unwelcome conduct, his is under the MPRM unwelcome conduct on the base of, of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the recipients education program or activity.

Jennie: That's quite a narrow definition.

Shiwali: Yes, it is a very narrow definition and it is conflating the standard for sexual harassment and hostile environment. Um, and it's the wrong definition to use for sexual harassment. But what Devos and the Department of Education are saying is that unless sexual harassment meets that very narrow and restrictive definition, a school must not investigate a complaint. They have to dismiss it.

Jennie: It's so unreal to me because it's just so hard to think that that's just going to stop people from coming forward. Right? Like there, it's not my case isn't that bad or any number of reasons to think I'm not going to meet that standard, so I'm not even going to say anything.

Shiwali: Right. And there are already survivors who minimize the harm that's perhaps done right. And so this is just going to exacerbate that. And again, I went back, I mean, earlier I said that reporting is so low. This is just gonna further chill reporting. Um, another change is that, um, uh, I guess the responsible employees piece of it where only a small subset of school employees would be responsible for addressing sexual harassment even if they see it happen firsthand or hear about it afterwards. So this means that a school would not be responsible for addressing the harassment unless there's actual knowledge by a Title IX coordinator. First, how many people know who their Title IX coordinator is? Like I don't, I mean I graduated from college years ago but I never knew even when I was in law school I had no idea what my Title IX coordinator was.

Jennie: And would even know to look for that exactly. Cause like you could maybe find it if you knew exactly what you were looking for. But like if you didn't know what you were looking for, like how would you even know?

Shiwali: Exactly. And can you imagine an eight year old trying to find out who their Title IX coordinator is? I mean we hear about teachers in K12 who don't even know who the Title IX coordinator is. And in school districts, the Title IXcoordinator is at the school district level. So they're not even in the building as the schools, the elementary and middle or high schools.

Jennie: So someone they would clearly be comfortable talking to about sexual harassment.

Shiwali: Right, about something so traumatic. Um, so it would have to be that person or in K-12 it would be a teacher, their teacher, but only for student on student sexual harassment. So if it's a teacher who is sexually abusing their own student and that student reports it to another teacher, that teacher under the MPRM would not have an obligation to do anything with the response. This is because the MPRM is requiring that the person who has an obligation to respond has to be an official who has, and I quote the Authority to institute corrective measures. So it's a very narrow group of people. This is not your Ra, this is not your TA, this is not your coach, not your athletic trainer. And I think a very clear example of, um, you know, the impact of this type of requirement would be the situation at Michigan State University where, you know, Larry Nasser had sexually abused hundreds, hundreds of young people, many of whom are students at Michigan State University. And a lot of them said that the ones who reported reported to their athletic trainers and coaches now under the MPRM, it wouldn't have mattered if the athletic trainer coach knew because they're not officials with authority tends to correct and measures. So Nasser would have been able to get away with continuing to abuse more people, which he did, but because they didn't report to the right person.

Jennie: And this kind of goes back to like some other things we've talked about by, they're not, I'm assuming them, they wouldn't even need to tell the student like, hey you all, you can tell me thanks for telling me, but you also, this is the person you need to tell.

Shiwali: They wouldn't, I mean you would hope that they would and schools can still go above and beyond and many universities do. I mean they have some universities require that every employee is obligated to take the report up the chain and respond to the harassment claim or a sexual assault claim. Um, so, you know, I hope that schools will continue that practice despite what Devos is doing. Um, but we know schools aren't perfect. Right? Again, we know what happened at Michigan State University, Penn State, USC, OSU, and the list goes on and on and on. And so it's just going to allow schools to ignore more reports of sexual harassment, assault again, of something that's already so under reported. Um, another, another change would be, um, regarding, um, her sexual harassment that occurs outside of an educational program or activity. So schools would be required to dismiss a complaint if in the complaint the student alleges that the harassment occurred outside of a school activities. So this would include many off campus incidents, off campus housing, sexual assaults that happen off campus housing or fraternity houses that aren't recognized by the school or you know, the school may consider to not be an educate part of an education program or activity where, where we know a lot of sexual assaults occur. Um, and so I mean, again, this is ignoring where the reality that a lot of sexual assaults occur off campus involving two students who will still have to be in the same class together, um, further traumatizing the survivor if they're going to have to share a class with their assailant because a school is not going to be allowed to under these rules, investigate what happened to the survivor. Um, but the rules also say that the schools can still adjudicate a dismissed complaint, so if it doesn't meet this narrow definition of sexual harassment or if it happens off campus outside of an education program or activity, under different policy, but just not Title IX, which, okay. Right. It doesn't make sense. I mean, I, I, I, I wonder if it's because they're trying to protect the named harasser, right? Because there's been so much talk of this stigma attached to being accused of sexual assault. And so if someone is going to be brought into a Title IX sexual assault proceeding, they, you know, it's going to stigmatize them. So here the department is like, well, we don't want to cause any more harm to your reputation named harassers or rapist. So you know, you can be, the school can investigate under something else that's not Title IX. So you're not, you know, it's not known to be a sexual harassment or sexual assault type of incident.

Jennie: And did I also see that also meant, especially thinking like k through 12 that any online harassment also would not be considered part of it.

Shiwali: Yes. So I mean, we're very concerned about what this would do for, um, online sexual harassment. I mean, I'm not caught up today with all the different ways that, you know, the different social media tools and online tools that young people use to connect with each other. But that is a reality. That's the world we live in and it's only been become more and more of that, right where there are these relationships that are online, um, and communications that are occurring online. And unfortunately with that comes harassment. Um, and so if there is harassment that's occurring, let's say it's 7:00 PM you're, you know, not in school anymore, but there are some like group chat or whatever involving a lot of students and there are students that are sexually harassing another student through that, you know, group chat or online, whatever form, then they're still gonna be impacted at school. You're gonna have to see the same students. It can be humiliating, it could be you feel unsafe. Um, depending on the nature of the harassment. But under these proposed rules, the schools wouldn't be able to investigate that under Title IX. So I, there are a lot of changes and another one, which is, it's kind of up, I'm going to try not to get into the legal lee of this is requiring schools to adopt the deliberate indifferent standard. Um, so essentially a school is not going to be found in violation if they're not deliberately indifferent, which is means not clearly unreasonable. So it's a high threshold. It's like the school must have done something so bad, but even if it was so bad, it's like fine, but it just must have been like so bad before they're considered to have been...

Jennie: That's very problematic.

Shiwali: Exactly. Um, again, because Title IX is a civil rights law, it's about providing equal access to education. And so by saying that, well, you know, it has to be so clearly unreasonable, then the student may have already been pushed out of school, they're not having access to education. Like it's just, it's really going against what the whole purpose of the law is.

Jennie: It's amazing how much they can come up with to mess with.

Shiwali: It's, it's really, it's really sad. And again, I mean we talked about Kavanagh, especially after everything that happened with Kavanagh. And I think there are just so many connections between how that played out and what we're seeing with Title IX. And there's just, there's something about wanting to protect these men, right? And their futures. And that if an allegation of rape comes in the way that's tragic for them because then they're not able to, you know, attain their future, their full potential, whether it be serving on the Supreme Court or becoming a CEO, whatever. And survivors are just like collateral damage.

Jennie: Well, I think even, I mean, I don't know worse, but like even just these lying women, right? Like you were not trustworthy. Like you just were not going to listen to you. And even if we do, and what you said was gut wrenching and we believe you, it's not enough to like stop the, I mean this poor guy like, hey, he had such a promising swimming career or he was going to be on the Supreme Court and what about his life?

Shiwali: It's really sad and think of the messages to sending to young people.

Jennie: Absolutely. I mean that was something that I just kept thinking the whole time um, during those hearings as like, what message are you guys sending? Or is this really the way you're going to go to send to survivors, to young girls? Like, you just don't matter.

Shiwali: Right. You just don't matter. That's what they're saying.

Jennie: So I think there was one more, uh, that you wanted to talk about. And that was cross-examination?

Shiwali: Yes. So I wanted to talk a little bit about the, um, well the issue of what happens once this, once it, this, the incident gets to this place where the school is not going to be required to dismiss it and the school would actually investigate it. Um, so once there is an investigation, there are these whole other processes that the Department of Education is going to require schools to implement. And so for institutions of Higher Ed and um, in particular they're gonna require a live hearing and so parties and witnesses have to be available for cross examination by the other parties advisors. And these advisors could include attorneys that are ready to just grill the survivor about these incredibly traumatic details of their assault. They could include an angry parent who's just so upset about the allegations and they're out to get this person. I mean, there are really no parameters that are set in the MPRM like rules on how cross examination has to occur. Just that it has to be allowed by an advisor of choice. And what happens if one student has an attorney and the other student is given an advisor who's another professor, they're just going to be an unequal footing.

Jennie: Yeah, I mean I could just as you're saying this, I just can think of so many things wrong. One retraumatizing victim. What if there's that disparity in wealth? Yeah. So you know, the accused can hire a lawyer who can go after, um, the victim and the victim just has, like you said, like a counselor from school. I, it just seems horrifying on so many levels. To a first you cleared all those original hurdles to get them to actually hear it. And now you're faced with this.

Shiwali: And I mean, how many witnesses are going to want to, if they have relevant information, will want to participate in a process where they have to be subjected to cross examination. I mean, this could be harder to then have the case be proved right. If there are people with critical information who would be deterred from going forward because they don't want to be cross-examined.

Jennie: It's just so I sometimes I'm just in awe of this administration and how they can find so many ways to just be so horrible.

Shiwali: Yeah. It's just so, it's really, really sad. I mean that's why we are really trying hard with an many incredible advocates and organizations to, to fight back. Um, because this is just, this cannot go into effect. I mean there is already much work that has to be done to improve how schools respond to sexual harassment. What reason would they have now to be better? Right? Why put more money into resources to educate our teachers on how to, how to recognize whether or not a young student is being groomed by another teacher so that they could intervene before something so terrible happens to that child. What incentive do they have to put money into educating students about sexual harassment and sexual assault and how to get help? I mean, this is just gonna. I mean, we want to see more of that in schools. And this is really going to take that incentive away. I mean, this is really going backwards.

Jennie: Yeah, very much so. Especially because, and I'm sure this is a reflex because it was such a priority of the Obama administration, um, to really tackle campus sexual assault. Um, I'm sure that's part of the reason why there's such a pushback against it. Um, I mean, not the only reason, but I think, you know, part of it, um, but it, it somehow makes it that much harder because we saw the progress happening and now watching it go like five steps back.

Shiwali: Right. And it's really upsetting. So I'll, I used to work, um, at Department of Education, the Office for Civil Rights. I worked on Title IX policy, um, and I left the department in June of this year fighting the very policies that I was working on. Um, and so I am familiar with the 2011 and 2014, um, guidance documents that were issued during the Obama era on sexual harassment that were rescinded by this administration. And it's troubling because there's so much, so much misinformation about what was actually contained in those documents. Um, they actually did talk about due process and they said that if someone is going to be disciplined, if a respondent is going to have to be subjected to discipline, then they should have notice of the allegations against them and an opportunity to respond. But Betsy Devos didn't even know that when she rescinded guidance and talked about it not having already included critical protections. Last September, um, when she, I was working at the department when she gave her remarks at George Mason University announcing that the department was going to go into rulemaking and criticizing the Obama era guidance. She had raised a few stories of, um, respondents. She talked more about respondence than she did survivors. Big surprise there. Um, and she had talked about cases where things really went wrong and you know, where someone's due process rights were violated. And there were really extreme examples. And I would agree that that would be unfair if someone is just suspended and they're never given any notice of this, these allegations against them, the first time they're hearing about it is when they're told they're suspended or expelled. That's completely unfair. And that is not, that would have got, that goes against what was in the Obama guidance. But she said it as though the Obama guidance would have supported. It was so frustrating. It's like, just get your information right before...

Jennie: It's this post fact that is just killing me.

Shiwali: Yup. Facts don't matter.

Jennie: Okay. So if these proposed rules were to go into effect, what would this mean for students?

Shiwali: This would mean, a lot of students would not be protected. This would make schools more dangerous. This would allow abusers, assailants, harassers, serial abusers like Larry Nasser to just keep doing what they're doing without any accountability. Um, and this would send a really strong message to students, to survivors that you don't matter and you don't deserve to feel safe in school. Um, and, uh, this will impact reporting, um, because it's already going to be, it's already so hard to report. Uh, and this is just going to make it even harder because schools will be required to ignore a lot of sexual harassment that they know about, but there is still time. Um, these are not final rules yet. The, you know, the 2011 Obama era guidance is still in effect. And so, um, you know, we really want to use this opportunity to, to encourage people to, to fight against the rules.

Jennie: Um, so something I read when I was prepping for this was something about expansion of religious refusals within this. And, um, I thought that made me stop because that's something that, um, is always kind of mind boggling to me. So what religious refusals are there within Title IX?

Shiwali: So there is a religious exemption and Title IX and um, it does not allow an exemption from all the Title IX. Um, the exemption is allowed to the extent that Title IXconflicts with the religious tenets of a religious institution. Um, and so oftentimes we see this with universities that are religious because a lot of, um, religious under K-12 schools are private and don't receive federal money, but the universities do through grants, um, and other types of financial aid. And so this, this is concerning because, um, well what the Department of Education is doing, and they stated at a, in their preamble is to codify a practice that they've had, um, at least under this administration, which is to allow religious institutions to invoke their exemption after a complaint of discrimination is filed against them in OCR. And so what this means is that schools would be able to discriminate against women against LGBTQ students, pregnant or parenting students, including those that are unmarried or students who access or attempt to access birth control or abortion. Um, schools will be able to discriminate against those students without first requesting an assurance of their exemption from Department of Education. Okay. So these students would not know that the institution, the school that they're attending would be permitted to discriminate against them. And how terrible is that to not even have that knowledge?

Shiwali: Yeah.

Shiwali: Until after the fact, until after you're discriminated against.

Jennie: It's wild to think that the school would be able to discriminate them against them either way. But yeah, exactly. It's also just an extra step to like you not even know.

Shiwali: Exactly. And they could just come up with some rationalization afterwards and say, well this is because of our religious tenant and you know, and they have a number of reasons to discriminate. That's whatever it is. It's wrong. And I mean, this is just going to make it easier for schools to get away with doing that. And again, it goes back to the department wanting to protect the schools because they don't want to have to disclose this information. I don't know if you know about, um, the history behind the Department of Education posting the, the list of schools that have claimed an exemption online. Um, and so, and this is good because it informed students that like, oh, I'm not going to want to go to that university if I know they're going to want to discriminate against me. Um, but a lot of universities pushed back because they felt that it shamed them. And so they wanted to be able to discriminate without letting students know that they're, we're going to do it. And so this, this kind of goes with that because it's saying, okay, we hear you schools, we're gonna make it easy for you to do that so that we don't have to let students know in advance, at least if you're going to do this terrible thing, it's protecting schools.

Jennie: Wow. Okay. So that's worse than I thought. All of this, I feel like, uh, these new proposed rules are worse than I thought, which is terrible. Um, so, but let's end on a positive note. So I always like to focus on what can people do. So what can we do to fight back against these proposed rules?

Shiwali: Great question. So today actually the rules are published and so the comment period has begun as of today and,

Jennie: And today is, uh, Thursday, Thursday the 28, 29. Today, Thursday the 29th, when we're recording this, it's going to come out, um, on the fourth.

Shiwali: So, um, the rules came out Thursday the 29th. And, um, this means that the 60 day comment period has begun. Um, well just talking about the commebt period, we are really outraged that Devos start would issue these rules right before finals period, right before the winter holidays, winter break where those that are most, those people that are most impacted by these rules, students, school employees will not be able to meaningfully participate. So why say 60 days when effectively you're given, I don't know, 10 days, right? When Devos said that she wanted all interested parties to be able to submit their comments and be involved in this rulemaking process, it's completely disingenuous. And so the National Women's law center, um, along with 123 other advocacy organizations and over 200, um, advocates, uh, has sent a letter to Betsy Devos and to Ken Marcus, the Assistant Secretary for Civil Rights at Department of Education on Monday, um, explaining why it's unfair to, um, provide only 60 days and we're requesting an additional 60 days to be able to, for comments so that people can meaningfully participate in this process. Um, we are not the only organization that's on letter, Know Your IX, they had sent in a letter I believe two days ago from students. I think there are over 600 students. And then we have an online petition that's still available on our website, um, where over 10,000 people have signed. So that is one way to fight back, which is to request additional time to comment so that everyone can be, be heard in this process. Um, the other is to submit a comment and the Department of Education is required to consider the comments that are submitted to them during this comment period. That's why it's so critical, critical that there is adequate time for people to be able to comment. Um, and you can comment on any of the changes or all of them or just some of them. Um, and you could tell the department how, um, this, you know, why these changes are problematic. Share an experience if, you know, if someone feels comfortable and safe enough to do that. Um, there are many ways that, you know, a comment can be submitted and they could be handwritten as long as they're legible. Um, handwritten, is good to be considered. And in fact, um, you know, we encourage handwritten comments. I think it would take longer for those comments to be processed and reviewed and delay though we do a good thing. Um, and they could also be submitted online. Um, we will have an online portal available on our website next week, but today we have resources on our website that are available explaining the changes and with the template on how to comment, um, including some how to videos on how to submit a handwritten comment with all the information that you need. Um, and the law center is always a resource. Um, and so we're always available to, to help at our website will have a lot of helpful information on this.

Jennie: And we'll make sure to include links to everything in our show notes and take action page. Well Shiwali, after a very, very depressing conversation. Um, thank you. Um, for everything you're doing and for talking about this.

Shiwali: Yeah. Thank you for covering such an important story.

Jennie: For more information, including show notes from this episode and previous episodes, please visit our website reprosfightback.com you can also find us on Facebook and Twitter at rePROs Fight Back. If you'd like our show, please help others find it by sharing it with your friends and subscribing, rating and reviewing us on iTunes. Thanks for listening.

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