I’ve been an educator my whole adult life and I’ve always believed that school is a golden place.
But that’s not true for every student. For some children, school is hell. Sexual assault and sexual harassment are perpetrated on victims of all ages, including on children in K-12 schools.
Recent data from the Office of Civil Rights shows that 20% of girls and 5% of boys are abused in K-12 schools in student-student or student-adult situations. And these child victims of sexual violence are 14% more likely than other young people to be victims of rape or attempted rape when they go on to their first year of college.
There are more than 862,000 students in Minnesota’s public K-12 schools. This means that according to the figures from the Office of Civil Rights, nearly a quarter of a million Minnesota K-12 students, 215,000 children, are victims of sexual abuse, violence, or harassment.
There are 56.5 million K-12 students in the U.S. And 25% of that number is a shocking 14,1 million children who are likely to be sexually abused or harassed during their K-12 experience.
A Minnesota Lawyer article (May 5, 2017) reports, however, that there is a wall of protection surrounding K-12 schools. This wall makes it very difficult for those who are assaulted or harassed to bring charges against the students or adults who perpetrate these crimes.
There are some efforts to crack that wall.
Betsy DeVos is the secretary of the U.S. Department of Education. She and the department are the target of lawsuits brought last month by attorneys general in 18 states, who represent 144 million Americans, 45% of the entire population of the U.S. Minnesota Attorney General Keith Ellison is one of the AGs in this suit.
There is a second lawsuit against DeVos and the Department of Education as well, led by the ACLU on behalf of organizations dedicated to helping students who have experienced sexual harassment and sexual assault at school. Those organizations include Know Your IX, the Council of Parent Attorneys and Advocates, Girls for Gender Equity, and Stop Sexual Assault in Schools.
Why this legal assault on Betsy DeVos? She has led the Department of Education to change Title IX, to loosen efforts to protect children from abuse and to increase protections for the abusers.
The Education Amendments Act of 1972 is known as Title IX. It prohibits discrimination in any educational institution that receives federal funds.
Most people think of Title IX only as the impetus to making girls’ sports available at schools. But in 1994, the Education Department’s Office for Civil Rights applied the law to a prohibition on sexual assault on campus, which includes K-12 institutions.
A 2009 study, however, showed that school assault rates had not declined and that students who were found guilty of sexual assault faced almost no consequences, only minor sanctions like counseling, community service, probation – or nothing. Sexual assault survivors faced the harshest punishment – seeing their rapist at school every day. Title IX was failing.
The ‘Dear Colleague Letter’
Based on the results of that 2009 study showing Title IX’s failure, the Obama administration issued a ‘Dear Colleague Letter’ in 2011.
Federal agencies can issue guidance documents called ‘Dear Colleague’ letters that interpret existing laws and regulations. Although these letters lack the same force as federal laws, they are important policy statements, and it is expected that these recommendations will be followed.
This ‘Dear Colleague Letter’ reinforced the requirement that schools investigate sexual assault and provide services for survivors. The letter set out rights and protections for accused students as well, including due process and appeals.
An important element addressed the standards of evidence. The Office of Civil Rights requires only the “preponderance of evidence” standard, the lowest standard, in resolving discrimination and assault cases, which gives the benefit of the doubt to the victim. Some schools were using the “clear and convincing” standard, which has a higher threshold than the “preponderance” standard, making it more difficult to find someone guilty. The Dear Colleague Letter reiterated that the “preponderance” standard should be used in sexual assault cases.
What happened to Title IX?
In September 2017, Betsy DeVos announced that the Dear Colleague Letter guidelines would be rescinded and that new practices would take effect on Aug. 14, 2020.
I believe, as do many others, including the AGs and the ACLU, that these changes are harmful to students who experience sexual assault or harassment – and, in many ways, these changes revert to the unsatisfactory and inadequate standards that existed before the ‘Dear Colleague’ letter.
In particular, the change allows schools to decide sexual assault cases using either a “preponderance of evidence” or “clear and convincing evidence.” This will make it harder to hold perpetrators accountable. Reports of sexual harassment will be held to a more skeptical review than reports of harassment based on race, national origin, or disability, which use “preponderance of evidence.” This creates a second-class standard for reports of sexual harassment and assault.
The lawsuit brought by the attorneys general states, “According to the federal government’s own data, sexual harassment against students remains pervasive and mostly unreported. With the Department’s final Rule, sexual harassment will not become less common — but it will, as the Department acknowledges in the Rule, become even less regularly reported and remedied.”
Fewer cases expected
The Department of Education itself anticipates that far fewer cases will be reported, noting, in fact, its estimate that four-year institutions will now investigate 32% fewer reports of sexual harassment and assault than under the ‘Dear Colleague’ guidelines.
We have seen the outpouring of women’s stories about sexual assault and harassment with the MeToo movement. The impunity for sexual assault begins here – in grades K-12.
We must protect our children, especially those in K-12 schools who are the most vulnerable.
World Without Genocide will host a public program about Title IX via Zoom tonight (Wednesday, July 22) from 7 to 9 p.m., featuring attorneys Lindsey Brice from the Minnesota Coalition Against Sexual Assault and Abigail Henchek from Gender Justice, and Jessica Melnik, director of Girls United MN. Registration is required; details and registration are available at www.worldwithoutgenocide.org/titleix.
Ellen J. Kennedy, Ph.D., is the executive director of World Without Genocide at Mitchell Hamline School of Law.
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