Student Organizers Critique DeVos’s New Title IX Regulations

In the wake of the release of U.S. Secretary of Education Betsy D. DeVos’s new Title IX rule, some Harvard student organizations have expressed concern over aspects of the guidelines.

DeVos’s new Title IX rule was released May 6 and will take effect August 14.

Campus anti-sexual assault advocacy group Our Harvard Can Do Better hosted a virtual town hall earlier this month to educate students about the new rule’s implications, and to begin organizing a response to it.

Phoebe H. Suh ’22, a member of Our Harvard, said a central goal of the meeting was to help explain the intricacies of these new rules to Harvard affiliates.

“We thought it was really important to educate the community,” Suh said. “Because even as organizers doing all this research on our own, we have had so much trouble figuring out the guidelines.”

Members of the advocacy group expressed concerns that DeVos’s new Title IX rule appears to offer more protections for respondents in sexual misconduct cases while discouraging would-be complainants from coming forward.

“DeVos says that they’re meant to ensure equal rights on all sides, but it’s clear that the changes that DeVos has made to Title IX are intended to silence survivors of sexual violence, and are intended to make filing a formal complaint that much harder," Suh said.

Sanika S. Mahajan ’21, another Our Harvard member, voiced a similar concern.

“We’ve been increasingly concerned with the narratives that these rules push, which is that the defendant’s rights need to be more protected than they already are,” she said. “It’s already an environment system where survivors are extremely afraid to report.”

In response to these criticisms, Department of Education Press Secretary Angela Morabito wrote in an emailed statement that the new regulations are intended to protect both respondents and complainants.

“Secretary DeVos has said repeatedly that one student harmed is one too many, and one student falsely accused is one too many. Due process, by its very name, does not favor one party over another,” Morabito wrote.

Morabito maintained that the new Title IX rules do not discourage survivors from filing complaints, pointing to requirements that institutions provide them with support and instructions on how to file complaints.

Mahajan said DeVos’s decision to release these new rules during the COVID-19 pandemic had the effect of limiting the ability of student activists to organize and protest in response.

“It’s really clear that these guidelines were released specifically and deliberately at a time when students — who are probably the group that this is most unpopular with — are unable to get out there and protest en masse,” Mahajan said, citing the current period of social distancing and off-campus learning.

In response to criticisms of the new Title IX rule’s timing, a spokesperson from the Department of Education wrote in an emailed statement that the regulations — which have been in the works for two years — were slated to be released imminently regardless of the pandemic.

“Secretary DeVos and senior Department leaders have been working on this rule for more than two years, so this should come as no surprise,” the spokesperson said. “Even during this national emergency, schools are adjudicating cases and OCR is receiving Title IX complaints. Civil rights are not on hold.”

The spokesperson added that the new rules permit universities to carry out investigations virtually, and that they are especially “timely” because they also address cyber harassment.

But some Harvard affiliates also criticized the fact that DeVos’s regulations do not cover all off-campus sexual misconduct that involves students. DeVos’s new rules only permit university Title IX offices to investigate complaints about sexual misconduct that took place either on campus, or, if off-campus, at an event or in a location where the institution has “substantial control.”

At Harvard, this means complaints of sexual misconduct between students at non-affiliated study abroad programs or off-campus parties — such as those at final clubs — would be considered outside of the University’s Title IX purview.

Mahajan said some students were concerned this new restriction presents a “loophole” through which the University would be able to “deny responsibility” for certain instances of off-campus sexual assault, such as incidents between Harvard students during non-University-sponsored travel.

“Survivors still have come to school and often see the perpetrator every single day, especially if they’re still on the same campus,” she said.

Some members of Harvard Graduate Student Union-United Auto Workers, meanwhile, expressed particular concern over the grievance procedure requirements outlined in the new rule, as well as its restrictions on what university Title IX offices can and cannot investigate.

HGSU-UAW Time’s Up committee member Marisa J. Borreggine said barring universities from investigating certain instances of off-campus sexual misconduct under Title IX tacitly allows schools to “ignore cases of sexual harassment and discrimination if it occurs off-campus.”

Borregine also said the new requirement of live cross-examination in Title IX proceedings amounts to “taking away rights and options from survivors.” Borreggine said HGSU-UAW has advocated for a third-party, neutral arbitration procedure, under which cross-examination would be offered as an option, but not made mandatory.

“We believe that our proposal is really based around giving survivors options, giving them a choice,” Borreggine said.

“We don’t agree with this new rule,” she added.

—Staff writer Isabel L. Isselbacher can be reached at isabel.isselbacher@thecrimson.com. Follow her on Twitter @IsabelLarkin.