Since Congress first passed Title IX in the Education Amendments of 1972, the law has had a history of providing equal rights and protections for those facing sex discrimination, including sexual harassment and assault, in federally-funded education institutions. But while Title IX built up an equity-based reputation from its support of women in instances of discrimination, not all of its current regulations provide adequate protection for victims of sexual assault. 

The Acalanes Union High School District Governing Board revised several of the district’s sexual assault policies recently in response to the Title IX regulations enacted by the Trump administration in May 2020.  

Title IX of the Education Amendment Act of 1972 is a civil rights law that prevents discrimination based on sex in federally funded educational institutions. Sex-based discrimination acts as a larger umbrella policy for sexual harassment, rape, and sexual assault, among other issues. 

On May 6, 2020, The US Department of Education, headed by Secretary of Education Betsy DeVos, released new Title IX regulations regarding sexual harassment. The revisions increase the protection of students accused of sexual assault by reinforcing the accuser’s right to due process, or their right to a fair trial. Many, however, regard the revisions as severely harmful to accusers’ rights.

“Over the last four years, the Trump Administration and former Secretary DeVos enacted harmful policies that eroded protections for students,” Democratic Congressman Mark DeSaulnier said as quoted by his press secretary Ben Enos. “The changes made to Title IX deny survivors their civil rights and make our students less safe.”

With these new changes, investigations into occurrences of sexual harassment will be stretched out.

“Investigations are going to be longer. It’s going to put a lot more weight on making sure that people accused of sexual harassment have due process. And the consequences will just be delayed because of that investigation,” Acalanes Associate Superintendent of Administrative Services and Title IX Coordinator Amy McNamara said.

Using First Amendment policies, these rights ensure that an accused person cannot be deprived of their education over a sexual assault allegation. The law also states that both parties may be cross-examined at a hearing for credibility, with the accused receiving written reassurance that they are believed to be innocent. 

   “Now the [accuser] has the right to question the victim on cross-examination. So that’s a little alarming for [the district] because I know how traumatic that can be for students who have been sexually assaulted, especially on campus,” McNamara said. 

   The new changes also redefined the definition of sexual misconduct, saying that only the most severe instances warrant investigation. In the instance that sexual assault or harassment occurred, the victim must take the case directly to the police, not to  their resident advisor.

   DeVos’s revisions emphasize a hands-off approach to dealing with sexual assault off-campus. While California law states that a school is responsible for handling any reported cases of sexual assault/harassment that occurs off-campus, the new Title IX laws say that anything that occurs outside of school on the weekends, or in summer is not the school’s responsibility to investigate.

   Past administrations, such as the Obama Administration, took a different approach in their Title IX policy, which protected the victim rather than the accused. Some added safety measures included exemption from academic, extracurricular, educational activities in which the accuser and the victim could coincide. However, the Trump Administration significantly limited the jurisdiction of Title IX policies, meaning that these measures do not apply to all instances of harassment.

   “I have to call an attorney every time something happens where it might rise to Title IX to make sure it is a Title IX investigation [to investigate]…It’s a very complex approach to Title IX now when under the Obama administration, we had a duty to step in and investigate everything that [took] place in a school to make sure students were supported and those proper investigations were done,” McNamara said.

   In response to the newly restricted Title IX regulations enacted in August 2020, the Acalanes district revised policies to adapt to the new framework. In starting this process, the new district policies must not interfere with state or federal law.

   “When we have a policy, the California School Boards’ Association writes a model policy, and they’ll say [that] under Title IX changes, these policies probably need to be reexamined by our district. And [that there is ] better language [to include] that meets both California law and this [Title IX]. So we have guideposts that we use when we revise a policy,” McNamara said.

   In their process of adapting the sexual discrimination and harassment policies to the new Title IX regulations, the Acalanes board had already revised a specific draft of their Maintaining Appropriate Adult-Student Interactions Policy during a Governing Board meeting on Dec. 9, 2020. Additionally, the board restructured and edited their Sexual Harassment policy with several more adjustments during their meeting in January.

   “So some of [the policies] have been reordered. And then what you’ll see is like they added things like contractors, people are on your campus … [to fall under the sexual harassment policy], the school has to intervene [if they violate it]. You have to take action. The other thing is [that] people who are pregnant, [gave] childbirth or [have] medical conditions are added as protected under [the] sexual harassment [policy],” McNamara said.

   While creating this new policy in their meeting on Jan. 13, the board reviewed a red-lined and edited version of their former policy to enact within the district, based on the aspects of the state and federal Title IX procedures the district will keep or adapt.

   “You can see so there are just slight tweaks in the procedure, and how the district is dealing with the alleged victim and the alleged perpetrator as they navigate the process. All of our site administrators and our HR department went through…eight [to] 12 hours of training to be trained on the new regulations, and how Title IX interfaces with California law. So both have to be incorporated in the state of California, to make sure that you know victims are protected, and…the new law changes things for the alleged perpetrator on that,” Acalanes Superintendent Dr. John Nickerson said.

   The new Title IX regulations, however, had a significant impact on the confidentiality portion of the district’s previous sexual harassment policy to follow the regulations’ demands for due process for all parties involved in the case.

   “[The changes take] out…the confidentiality piece…That is due largely to the Title IX change of if you’re accused of sexual harassment, you have the right to know. So that is part of [why] we can’t keep it secret … You have a duty to investigate as an administrator and you cannot keep it secret from the person that they’re accusing,” McNamara said.

   Following further revisions of Title IX-related policies, the district  plans to incorporate these changes into the following 2021-2022 school year in accordance with the mandatory state training schedule on sexual harassment.

   “All [district staff] every two years has a mandatory training from the state on sexual harassment. So that will happen again, this [school year] was our off-year and we were working on policy this year,” McNamara said. “So starting in the fall [of 2021] when students and teachers come back [in-person], these new changes will be incorporated. The Title IX changes I’m sure will be part of the stage training on sexual harassment.”

   While they are federal law, the Title IX revisions allow room for schools and local governments to implement their own sexual assault policies, as long as it does not directly contradict those stated in Title IX. 

   “It’s important for us to be in compliance with the law, of course, and I think any discrepancy would be that you know that the regulations are a floor, not a ceiling,” Acalanes Board Clerk Kristin Connelly said.

   Many believe that the Biden Administration will roll back the changes made to Title IX, but repealing the Trump Administration’s policies could take up to three years, and conservative states will most likely retain DeVos’s version of the policy.  

   “Don’t think that Biden’s going to be elected and it’s all magically going to go back to the way it was. It won’t. It may change slightly and we update board policy all the time as we get federal advisories, but I don’t know that it’s going to change that dramatically,” McNamara said.

   Due to the permanence of the Trump Administration’s and DeVos’ Title IX regulations, the District fears that the more time-consuming investigations will ward off student survivors from coming forward. 

   “And my fear is that students seeing how tough this process is might say like, ‘No, I don’t want to go through this. I don’t want to face the person who did this to me, or I don’t want to have this really long process and it can take up to 120 days to do an investigation,’” McNamara said.