Sexual Assault on Campus: Will Title IX Rule Changes Make Schools Less Safe?

Title IX is an anti-discrimination law that protects students and employees in education environments. The rule is critical-- it ensures that schools respond appropriately to sexual harassment and assault against employees and students in educational institutions around the U.S. Unfortunately, the Trump administration has introduced a new rule that would essentially dismantle Title IX and have schools take steps to discourage students from reporting sexual harassment and assault on campus. Shiwali Patel with the National Women’s Law Center talks to us about this extremely harmful rule change and what it could mean for students across the country.

Title IX protects all students and employees in schools, and is based on sex—this includes issues related to pregnancy and related conditions, sex stereotyping, sexual orientation and gender identity. This is especially important when we note how widespread sexual harassment, assault, and misconduct is on U.S. campuses; approximately 1 in 4 undergraduate women, 1 in 4 transgender or gender non-confirming students, and half of elementary, middle, and high school students have experienced sexual assault or harassment on school campuses. It’s also important to note that students with disabilities are 2.9 times more likely than their peers to be sexually assaulted.

The Trump administration is attempting to turn Title IX on its head. In fact, if the rule change were to take effect, it would make campuses much more dangerous—it would require schools to make it harder for students and employees who have experienced assault to report it, require schools to ignore reports of harassment, require schools to treat victims unfairly, and give schools the license to discriminate on the basis of sex without notice to students. The rule would allow schools to use mediation (direct interaction between a victim and perpetrator) in its sexual misconduct investigations, as well as give religious schools the ability to discriminate against students without prior notification to the Department of Education (students and their families would be unaware if the institution they are planning to attend will discriminate against them). These changes perpetuate the gendered stereotype that survivors are unreliable rather than to ensure that sex discrimination has no room in education.

If the rules were to go into effect, it would lead to sexual assault going even more underreported than it already is. They will also lead to more confusion if a sexual misconduct case does not meet the narrow scope of what’s described in the rules. It is important to remember that these rules have been finalized, but are not yet in effect.

Links from this episode

National Women’s Law Center on Facebook
National Women’s Law Center on Twitter
DeVos’s New Title IX Sexual Harassment Rule, Explained
Rape, Abuse, and Incest National Network (RAINN)

Transcript

Jennie: Welcome to RePROs Fight Back, a podcast where we explore all things reproductive health, rights and justice. I'm your host, Jennie Wetter, and I'll be helping you stay informed around issues like birth control, abortion, sex education and LGBTQ issues and much, much more-- giving you the tools you need to take action and fight back. Okay, let's dive in.

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Jennie: How's everybody doing? Things here are going well. And I hope they're well where you are. It's to the time of year where I can finally have my windows open most of the time. It's a little later than I would like, because I have seasonal allergies. So I can't have him open too early in the spring, or my allergies get really terrible even on medication. So they're not too bad right now. I'm able to have my windows open all the time and I'm not the only one who's excited-- my cats are in the window. Like almost all the time. They're so happy when they can do that. So this week's episode is a little heavier than usual. I figured we would do a nice light and fluffy kind of check in. I think I might've told you all about this before, but I'm not a hundred percent certain, so forgive me if I'm repeating myself a little bit, but right before everybody got locked at home, it was my birthday. And I had been thinking about like making a change and doing something fun for my 40th birthday. And I was thinking, you know, it might be kind of fun to dye my hair pink and I wasn't really going to do it. No, it's one of those things like, oh, I should do it, it'd be fun, but just never really, made it happen. But the craziest thing happened when I got to my hair appointment, my hairstylist was like, oh wait, I have this wild idea on my way in today. I was thinking, what if we dyed your hair pink? Clearly I had to do this. So for my 40th birthday, we bleached out all the red and dyed my hair, pastel pink, and it's been so much fun. Well, so I don't know if any of you have done like pastel colors, but they fade pretty fast. So I have been having to do like the leave in the, uh, coloring conditioners. I've been having so much fun. Well, I have been at home doing colors that I probably wouldn't normally do, like going to work. I've had a really fun fuchsia. I've done rose gold, which I have loved, and I'm getting ready to do an aqua, which I think is going to be so much fun. I don't know that I would have ever dyed my hair blue normally, but I'm having fun being able to play with it while I'm at home. And so everybody gets to enjoy it on Zoom calls instead of in person. The other thing that I did was I needed a couple of things from Sephora. So I went on and was looking at the lipsticks and I decided, you know, there's all these funky colors that I have looked at so many times and have really wanted to buy, but I'm like convinced they would not look good on me. And I said, you know what, screw it. If there is ever a time to get all these funky colors that I don't know that I can pull off, but to do it seems like now is that time. So I got several colors. They were on sale. I didn't even feel that bad about it. And I got like a metallic green, a periwinkle blue, like a really dark purple that's like almost black. I am having so much fun putting on these funky lipsticks for Zoom calls, you know, not all of them are super flattering. That's okay. I'm, I'm cool with that. It's been something that has added a little bit of pizazz and fun to my day and you know, sometimes you just need to put on a bold pop of color and have fun. So that's where my brain has been at the last couple of weeks.

Jennie: And so right now my hair is getting back to almost blonde. Uh, the last color I did has faded out. I'm trying to decide maybe by next week's episode, I think I'm going to do the fuchsia again. I think I have like enough of that left to do at one more time. So I'd probably do the fuchsia again and then I will be turning to the blue. So that's where my hair is at right now. I know you've all been wondering. So with that we're going to make a hard turn because this week's episode is kind of a heavy topic. We're going to be talking about the finalized rule changes to Title IX that Betsy DeVos proposed and have just been finalized. They will be taking effect in August. And so that means this episode is focused on sexual harassment and sexual assault. You know, we don't do a lot of talk about sexual harassment and sexual assault. It's mostly focused on policy, but you know, just make sure that you are in a headspace where you can listen to it. And if not, you can come back later or if you need to skip this episode altogether, you know, totally understandable. But you know, since we are talking about sexual harassment and sexual assault, it's really important to make sure that I'm not just putting that information out there, but we're also giving out resources. So if you need someone to talk about sexual harassment or sexual assault, please reach out to RAINN. You can find them online at RAINN.org, or you can call them at 800-656-HOPE and they will connect you with someone in the area who, whereas with a sexual assault service provider. Okay. With that, we are going to talk to Shiwali Patel with the National Women's Law Center about these proposed changes to Title IX and what they are going to mean to survivors. Hi Shiwali, thank you so much for being here today.

Shiwali: Thank you for having me back to talk about the Title IX rules.

Jennie: Yeah, no, I learned so much last time, so I'm really excited to have this conversation again, but in case people didn't listen last time, let's like start at the beginning and talk about what is Title IX?

Shiwali: So Title IX is a very, very critical in fight discrimination law. It protects students and employees from discrimination in educational programs and activities. And yeah, typically I think when people hear Title IX, they're assuming that it has to do with athletics, but it's actually much more broad then that it does prohibit discrimination in sports, but it also covers discrimination in recruitment or admissions, financial aid course offering facilities, extracurricular activities in addition to school sports, employment, and also the school climate, which includes like sexual harassment and other forms of gender based harassment settlements… also prohibits retaliation against someone for kind of speaking up about sex discrimination, that's happening in the school. And so retaliation can include suspension or expulsion reductions in grades, um, or additional harassment and more.

Jennie: Great. So who was protected under Title IX?

Shiwali: So Title IX protects all students and employees at schools, regardless of gender. Title IX is about discrimination based on sex, which includes pregnancy and related conditions. It also includes sex stereotyping, sexual orientation and gender identity and something that I think its really kind of ironic in a way that we are approaching the anniversary of Title IX. And I say that is ironic because yeah, the anniversary is coming up at a time when the Department of Education is weakening Title IX protections. And you know, and so organizations like ours, for example, which I'll talk about later are we'll be fighting to preserve those protections.

Jennie: So we're going to be focusing on the sexual assault rules that the administration promulgated recently, but maybe we should talk a little bit about kind of what the landscape looks like right now at schools, so that people kind of have an idea of what, why the rules are so important.

Shiwali: Yeah. I mean, these rules are critical because they ensure that schools respond to sexual harassment, including sexual assault against students and employees. And it's so critical because of how widespread sexual harassment in schools is. There was a recent survey from the American Association of Universities that came out last year that found approximately one in four undergraduate women in college are sexually assaulted. This is higher from an earlier survey that they conducted were found. The rate was one in five undergraduate women. For students who are in middle school and high school nearly half of them are subjected to sexual harassment ourselves. So it's a very, very high number of students who were impacted about by sexual harassment and it's even greater for students with marginalized identities. So for example, there was a study in 2018 that found that more than half of LGBTQ students are sexually harassed at school during the past year. And for college, there was one study that found that nearly one in four transgender and gender nonconforming students experience sexual misconduct. And for students with disability, there is a study that showed that they're 2.9 times more likely than their peers to be sexually assaulted. And so, you know the numbers are devastating. Um, it's particularly, you know, terrible for all students and especially students who have different marginalized identities and not only that when schools are not responding effectively to harassment, the impact is quite significant. We know, and from the cases that we litigate, that to many individuals who experience it are often dropping out of school because they don't feel safe on campus. Some students are even expelled because of the lower grades that they've received in the wake of the trauma. Some of them are even punished by their schools after reporting sexual harassment. And we've seen that in the cases that we litigate where students in K-12, uh, there are a few cases, actually there are high school students. So after reporting to their schools that they were sexually harassed or assaulted, were either disciplined in one case-- a student who was disciplined and punished for it-- and so, you know, the school did not respond effectively and their education suffered as a result. And we know this is particularly bad for students of color, especially black girls who, because of race based and gender based stereotypes, uh, too often are disbelieved, or sometimes they are blamed for being sexually harassed or are punished for it. And so, no, our concern is that these issues that we're seeing impacting survivors will just be exacerbated by, by the rule changes.

Jennie: Yeah. And the numbers are always astonishing whenever we talk. I, my mind is always blown. One in four students is unreal. And what was it? One in two in K-12?

Shiwali: Yeah. It's nearly half of students in high school or sexually harassed. Oh, there was one study that found that about 56% of girls and 40% of boys are. And so it's, it's, it's very common and too often schools are not responding appropriately. So, you know, in the cases that we litigate, that's what we've seen, where, you know, there are students who are met with disbelief or even punishment when they reported the harassment and it didn't just end and it would get worse. And so that's why it's so important that Title IX exists because it is a civil rights law. And it requires that a school's response is sexual harassment because that's what students are entitled to. That's their civil right that students and employees are when they report that their complaints are taken seriously and that their access to school is not harmed by the sexual harassment.

Jennie: So with all that, as background, the Trump administration has proposes this new rule, do we want to give a little bit of background on that before we get into the actual rule itself?

Shiwali: Yeah. So this rule…it's terrible. Um, it would essentially require schools to take steps that will discourage students from reporting sexual assault and other forms of sexual harassment. And, um, when you review the rule in its entirety, the rule itself is quite lengthy. And then when you include the preamble, which is like the Department of Education, um, justification for their changes, it's about at least in like the published version of the rule for 500 pages, it's very long, but when you review it, it's pretty clear that through these changes that the Department of Education is, is trying to make it harder for students to report and to get help for sexual harassment. And that the department is mandating is a process…these hearings and procedures that would be unfair to the complainant and intimidating and could be retraumatizing like requiring direct live cross-examination, they're really just turning Title IXon its head. And it's apparently motivated by sex stereotypes. And this myth that survivors, especially women and girls tend to lie or saturate about sexual assault and other forms of harassment, and that his perception that sexual harassment has just such as relatively trivial impact on those who experienced it. Right? So there's like a minimization of the harm and the impact on students and employees. And, you know, we, we see that these rules are particularly harmful for students of color, pregnant or parenting students, LGBTQ students, and students with disabilities, as they're more likely to experience sexual harassment and also more likely to be ignored, punished and drop out of the school entirely. And yeah, this is just the latest piece of undoing of civil rights protections for survivors in school. It started in 2017 in the beginning of, of the Trump administration when DeVos rescinded critical guidance from 2011 and 2014, that outlined what schools must do to respond to sexual harassment. And what she did is she replaced it with new guidance, um, that was confusing and harmful and remove protections for students. And just weeks before she did that, DeVos made statements that kind of diminish the full range of sexual harassment that students experience and have equal access to educational program.s She claimed that, and I quote, “if anything, if everything is harassment, then nothing is,” and then there was this other official who oversaw the department's Office for Civil Rights at the time, Candace Jackson, she was a Trump official and she reinforced the myth of false accusations to the New York Times in an article. And she claimed that 90% of her office’s Title IX investigations were really the result of drunken sexual encounters and regrets. And then you hear the president himself has repeatedly, publicly dismissed the disputed allegations of sex-based harassment and violence made by women. And what's really telling is that these officials have not expressed the same skepticism of the denials made by men and boys accused of sexual harassment, including sexual assault. So then, you know, about a year later, uh, after the 2017 guidance came into effect and DeVos for the 2011-14 guidance, the department submitted their proposed Title IX rules in the fall of 2018. And there were so many comments, there were almost 125,000. I would say the majority of which are codes of rules. And so it wasn't just survivor advocates or women's groups or civil rights advocates, but there were associations of colleges and universities, school superintendents, principals, mental health professionals, teachers, members of Congress, students that opposed the rule. So there's a lot of opposition. And, and so, you know, the final rule eventually dropped a little over two weeks ago…So there are a lot of pages in the preamble where they do that, but ultimately, you know, if these rules are allowed to take a fact, the, you know, the new Title IX rule would make schools more dangerous for all students, it would require a school to ignore many reports of sexual harassment, requiring schools to use procedures that treat victims unfairly and make it harder for students who have experienced sexual assault to come forward, and it would give religious schools a license to discriminate on the basis of sex without notice to students. And so, you know, we've announced that we plan to sue the Department of Education on these rules. And I think last week, the ACLU had filed a lawsuit as well, challenging these rules.

Jennie: That's so great that you all are fighting back. So because it is a 500 page rule and there is so much to get into, we're just going to kind of divide it up into areas of harm. And so you've touched on a lot of them already, but we'll talk a little deeper about what exactly the rule allows. So the first thing you talked about is that the rule would allow schools to ignore victims.

Shiwali: Yes. So, you know, this part of education has explicitly stated that it's still an issue, and this rule is to reduce the number of sexual harassment investigations conducted by schools. And I mean, if this rule was accomplished, it would make it harder for students to get help for sexual harassment. And in fact, what's quite perverse is that it would make it harder for children in schools to get help for sexual harassment than adults in the workplace. So it would accomplish this a few ways. Some schools would be required to dismiss all reports of sexual harassment that occurs in a study abroad program, or that occurs outside of the school program or activity. So this includes most off campus and online sexual harassment, even if the sexual assault survivor must take a class taught by or shared what their assailant, schools must dismiss harassment of complaints when students are just assaulted in the wrong place. And we know that, you know, the trauma from having experienced sexual violence, it's not dependent on the location of the assault, right? So the impact in the student's education will not be dependent on whether or not the assault occurred off campus or on campus. And these rules ignore the, the harm and the impact on a student's education, uh, from having been assaulted, the rules that also require schools to ignore reports of in-school sexual harassment, effectively denying equal access to a school program or activity. So what that means is that a lot of survivors will be forced to endure repeated and escalating levels of abuse before their complaint can be investigated. So rather than allowing schools to respond to all complaints of sexual harassment, when they're know about it, the rule that requires survivors to first claim that their access to education has suffered as a result of the harassment before their school can investigate. And in higher education schools will be empowered to ignore any harassment that is not reported to a small set of high-ranking school employees. The colleges and universities will not be required to take any action if a student asks an advisor, coach or professor to help address sexual harassment. So under this rule, Michigan State would have had no responsibility to Larry Nassar, when his victims reported abuse to athletic trainers and coaches, and for the first time, students will only be able to file a sexual harassment complaint with the school while they're still only if they're participating in or attempting to participate in a school program activity when they filed a complaint. So that means that, you know, the school is not allowed to investigate a complaint of sexual harassment. Even if the respondent, even if the perpetrator is still enrolled at the school or teaching at the school if the survivor has already graduated, transferred, or even dropped out because of the harassment. And if they don't want to re-enroll or stay involved in the alumni program. So similarly, you re a visiting high school student and you're sexually assaulted by a college assistant or professor during an admitting weekend. And then as a result, decide not to attend that university. Then the student would not be able to file a complaint with that college because they're not planning to attend there because this would tie the hands of schools that want to respond to known sexual harasser, particularly by individuals who are affiliated with the school. And he could be a serial rapist or abuser. And there's more, there's so many terrible things about this rule, but also for the first time would be allowed to dismiss complaints, even during a pending investigation or hearing because of respondents. So the perpetrator is no longer enrolled in or employed by their school. So that means if a student graduates or transfers to another school after they sexually assault another student, the school no longer has to investigate the complaint. Similarly, the teacher retires or resigns after their sexual abuse of many students over of over several years comes to light. The school will no longer have to investigate or determine the scope of the abuse, the impact of the abuse on students, and even whether other employees knew about the abuse, but ignored it so that the school could then take measures to ensure that that doesn't happen again. So without an investigation, the school, wouldn’t be able to remedy the hostile environment for the survivor, the broader school community, or take steps to prevent that type of abuse happening again.

Jennie: So as if the bucket of ignoring victims wasn't enough, there are allowed to mistreat victims.

Shiwali: Yeah. And to have procedures that are quite hostile. So, you know, this role would require schools to use procedures in investigating and resolving sexual harassment complaints that hold sexual harassment complaints to a much higher, more burdensome standard, then complaints of other types of student or staff misconduct, ultimately making it harder for students who've experienced it to come forward. So for example, schools will be required to frame investigations around the presumption that no sexual harassment occurred-- that is, schools will be effectively required to presume that all students who report sexual harassment are lying, and this presumption only applies for sexual harassment, but not other tests of misconduct or harassment. Some schools will be required to use a more demanding standard of care for determining responsibility for sexual harassment then they do for other types of student misconduct, even though there's no evidence that students who report sexual assault are less credible than those who report physical assault or other types of harassment. And this rule, like all of them really rely and on and perpetuate false and toxic stereotypes that women and girls tend to lie about sexual harassment assault and are just less credible when they're bringing these complaints forward. And another piece that has received a lot of attention, because it is quite significant, like the others, and also very conservative concerning is that in higher ed survivors and their witnesses will be required to submit to cross examination that is direct and in real time, by a respondence advisor of choice. So this could be anyone from an angry parent, your fraternity brother, or a criminal defense, but it's important to know that the schools are not courtrooms and school proceedings students typically don't have counsel. They don't have legal protections that are provided in the courtroom. They don't have rules of evidence, whereas in trial procedure or meaningful protections from inappropriate, irrelevant, or victim blaming questions. So, this means that sexual assaults in college are under reported by about 12%, and survivors already face many barriers to reporting, including fears about their complaints, being treated seriously, or that they'll be blamed for the assault or punished if they report. And so iy requires schools to have a process like this that would allow for something that could be so retraumatizing, like direct live cross examination. And that would deter many students from participating in investigations at all. And, and the Department of Education does not have to require institutions to allow for direct live cross examination. In the rule and the preamble to the rule, the department acknowledges that these grievance procedures, uh, that they're prescribing through the Title IX rules are not required under oath, due process. So it's not like students have, uh, the right to due process to be able to engage in direct cross examination. And yet the department is moving forward to, um, require schools to have this incredibly burdensome procedure that could only be retraumatizing and deter students from coming forward with their reports of sexual harassment. And so, you know, any rule like this requires colleges and universities to conduct criminal trial with live cross examination when no such requirement exists for addressing any other form of misconduct at schools really communicates the message that survivors are uniquely unreliable and implicit in such a requirement… is this deep skepticism of sexual assault itself.

Jennie: Yeah. I mean, this whole process really seems to meet the goal of what they were saying of having less incidents of sexual assault reported.

Shiwali: Yeah. Right, right. Exactly. And it's already so under reported and you know, it really just turns Title IX on its head because the purpose of Title IXis to ensure that sex discrimination is not the end of anyone's education. And that's why their requirements under Title IX for schools to respond to sexual harassment. Because when students are sexually harassed, including sexually assaulted, and the school's not responding appropriately, many students are then pushed out of school altogether. And so their education suffers, however, you know, this rule, which just require to do less when they should be doing more given how prevalent, how prevalent these incidents are in schools and how much they impact students and their ability to feel safe and to learn. So another thing that's also very troubling about these rules is that it prohibits schools from providing the evidentiary rules and protections that make cross examination work in courtroom proceedings. So for example, if a survivor refuses or is unable to answer even a single cross-examination question, because it's too traumatizing, then the school will be required to disregard all of the survivors statements in the formal complaint as a live hearing and an all other written or oral evidence, even statements in a video of the incident.

Jennie:…that is wild.

Shiwali:Yeah. It's so wild. And it's can I make it so hard for schools to be built, to investigate and to find out what really happened? And it's such a broad exclusion of evidence. And so similarly, if there is a nurse or any other witness who was unavailable for cross examination at the school, even if it's from very good reasons as to why they're not available, none of their previous written or oral statements in their police report or medical record or text or email message can be considered as evidenced by the school. So schools will also be prohibited from excluding any cross examination question or evidence that is overly prejudicial or misleading, or that relate to survivor's dating or romantic history with other people so long as it does not explicitly refer their sexual history with other people. So that means that the school would have to be able to consider it those types of crossing the hood. They have to allow those types of questions. Yeah.

Jennie: Wow.

Shiwali: So it's, it's very, very, very trivializing. And, you know, again, it's just going to make it harder for schools to be able to, to thoroughly investigate a complaint of sexual harassment or assault. And it's such a broad prohibition on, on evidence, and it's quite astonishing. It's like the department is making it harder for schools to, to do what they need to do, which is to investigate and find out what happened when someone comes forward with a complaint of sexual assault.

Jennie: Again, it's the, the more I find out about this, the worse it gets.

Shiwali: Yeah. And it's, what's also, yeah, frustrating for, uh, someone who's, you know, trying to understand these rules and read them is that, as I mentioned earlier, there are several hundred pages of preamble. This detail about cross examination statement…this is in the preamble to the rule, which is like buried in hundreds of pages of explanation and clarification from the department, the rule, this isn't even in the rule itself. So, I mean, I, I can't imagine that for students who are trying to now understand what their rights are, if they've been sexually harassed, to be able to really understand what this Title IX rule mean sand how it would impact them, because they would have to read this preamble. There's like, you know, hundreds of pages just in the preamble and you wouldn’t get information about how these rules would affect you because it's not all in the rule itself.

Jennie: And, you know, there was another bucket of ways that there's a harmful response from schools and, and that was having mediation. Do you maybe want to explain a little bit about why that is problematic?

Shiwali: From guidance dating back to 2001 by the Department of Education, schools are prohibited from using mediation to resolve sexual assault complaints and they should be because mediation assumes both parties share responsibility for the assault, and it can allow us feelings to pressure survivors into inappropriate resolution. And because mediation often requires direct interaction between the assailant and the survivor, which could be retraumatizing. So under this new rule, schools would be allowed to use mediation to resolve any complaints of student’s complaints of sexual harassment, which includes sexual assault, domestic violence, dating violence and stuff. And there, we're not the only organization, the only ones who have concerns about this, there have been students as survivors and advocates who have opposed this rule of this allowance of mediation for sexual assault, because it can foster coercion. It could allow abusers to manipulate victims and it can allow students to be pressured by administrators to enter into mediation rather than know they're cases are just being processed, being investigated through the political process.

Jennie: And I think there was one last bucket that really seemed worth digging into, and that was religious exemptions.

Shiwali: Yes. Uh, so ultimately what this rule would do is give religious schools a license to discriminate on the basis of sex without prior notice. So religious schools would be able to discriminate against students without notifying, uh, the Department of Education and share that they intend to do that. So under Title IX there is an exception for religious institutions to the extent that compliance with certain provisions and not all of Title IX, but with certain provisions of Title IX conflict with their religious tenants. And so the Title IX rule would allow schools to just claim a religious exemption without any prior notice. So that means students or their families wouldn't know if the institution that they are planning to attend would be able to, or would claim that they have a license to discriminate against them because of, for example, their sexual orientation or their gender identity, or because they are, you know, accessing birth control or abortion as a student. These religious institutions under this Title IX rule could each claim a religious exemption after there are already under investigation for violating Title IX. So this means after student is discriminated against, and they file a complaint with OCR, with the Department of Education's Office for Civil Rights, and that religious institution that has discriminated against that student based on their sex then claims that they are actually exempt from Title IX and therefore allowed to discriminate rather than announcing before this discrimination happened, that they had intent to be able to discriminate based on sex. So that makes sense. And then there was a separate proposed Title IX rule that was published in January, 2020 that would allow many more schools to claim a religious right to discriminate simply because they subscribed to “moral beliefs or practices.” And so these two rules, uh, separately together will be especially dangerous for women and girls, for LGBTQ students, for pregnant and parenting students, and for students who access or attempt to access birth control or abortion.

Jennie: So with all of these parts of the role, what would this mean for people? If it went into effect?

Shiwali: Something that we've been hearing about from survivors and organizations that work directly with survivors is that there'll be less reporting that, uh, there's a lot of concern about the rule in its entirety, but in particular, some of the provisions that would be hostile towards survivors if they report-- like direct live cross examination. And so we anticipate that there'll be fewer reports of sexual assault and sexual harassment because students will not want to be subjected to these hostile procedures. And also because their schools would not be able to investigate a lot of…there are complaints of sexual harassment that occurred outside of an education program activity, or if it didn't meet this really narrow definition of sexual harassment that the Department of Education now requires, and this is very concerning because about 12% of sexual assaults on campuses are reported. That's very, very few of the actual incidents that are reported. And so what schools should be doing is to ensure that survivors actually feel safe enough to report. It's not for, you know, an investigation to be initiated, to be able to receive some sort of supportive measures from the schools or accommodations so that they can continue to learn-- like academic accommodations, extensions on exams, counseling, other types of health services-- and the Department of Education should be requiring the schools do more to ensure that no, it's their safe spaces for our students to get the help that they need if they are sexually harassed, including sexually assaulted. What this also means is that generally, I mean, this will be viewed as the federal government. I mean, this is actually would this mean that fewer seats to feel supported from the federal government? They're not going to see the Department of Education as an avenue for help because the department is a federal agency, it is the agency that administratively enforces Title IX. So that means they are a place for anyone who claims that they then discriminate against by their institution or other civil rights have been violated, they can file a claim with the department of education to initiate an investigation and for the department of education to get their school into compliance. But now with these rules that really weaken protections under Title IX, the Department of Education will not be the avenue for many students who have been mistreated by their institutions to be able to remedy the harm that they've experienced and because of this, because these rules are so arbitrary and they turn Title IX on its head and they weaken Title IX. And to ensure that all students are protected from sex discrimination, including sexual harassment, we at the National Women’s Law Center are ready and planning to sue the Department of Education to hopefully stop these rules from going into effect.

Jennie: Yeah. So it's definitely worth mentioning that the rules are final, but not in effect yet. So what can listeners do right now? What actions can listeners take to try and fight back?

Shiwali: I think what's really important for listeners and for anyone to do is to really, to speak out about these rules and how they're harmful and to make sure that the narrative about the rules focuses on how students will be harmed and how the rules would create unfair procedures that would harm survivors of sexual violence. And to really challenge this false narrative, that's perpetuated by DeVos and many men's rights advocates and sexist extremists, to falsely claim that these rules would protecting due process rights or that they would ensure that grievance procedures are fair when the rules would actually do the opposite. The department itself has acknowledged that due process does not require the procedures that they're putting forth through the Title IX rule. And, you know, the department is trying to putting forward rules that would create special rights or named harassers. So it's important that, in their narrative, that they're false narrative is not kind of controlling as you have of how these rules are perceived. That, you know, as many people as possible kind of speak about the harm that will, uh, impact students and in particular survivors of sexual assault.

Jennie: So one thing I've been doing while we are stuck at home and working from home is trying to have something fun at the end. So what is bringing you joy right now? It doesn't have to be work-related can be something really small.

Shiwali: I think so, you know, I have, I have two kids, I have a toddler and a baby and, you know, having more time with them, it does bring me joy as tiring as it can be to balance that with work. It does bring me a lot of joy to be able to witness their lives more and, and how they're growing and how they're experiencing the world. It does bring me joy to be able to spend more time with them.

Jennie: That's so great. Let's see. I think that is everything. And Shiwali, thank you so much for doing this. I really appreciate you being on the podcast again.

Shiwali: Yeah. Thank you so much for having me and you know, I can go on and on about these rules because there are, they're terrible.

Jennie: I know they're terrible, but every time I talk to you, they're always so much worse than I think.

Shiwali: Yeah. Yeah. They're so wrong. Right? When you like, actually hear about all the ways, there's so many ways that they would just make it harder for students to get help when they're sexually harassed and it's wrong that they are framing this as like their attempt to provide greater civil rights protections. I mean, it just feels like gaslighting cause it's not doing that rolling back protections.

Jennie: Well, thank you again.

Shiwali: Thank you.

Jennie: Thanks for listening everyone. And we'll see you on our next episode of RePROS Fight Back. For more information, including show notes from this episode and previous episodes, please visit our website at reprosfightback.com. You can also find us on Facebook and Twitter at RePROS Fight Back, or on Instagram at reprosfb. If you 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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