It’s clear that schools have had to reinvent the learning experience while facing an unprecedented health crisis. Many K-12 schools, and colleges and universities around the country, have had to adjust to distance learning while channeling their resources to help meet student needs.
But left largely unanswered thus far is how this new learning environment impacts a student’s rights when they are sexually harassed?
In December 2019, Jane,* a middle school student near Austin, Texas, was repeatedly groped by a classmate at school. Jane’s mother reported these incidents to school officials. They did not conduct an investigation, or provide any safety measures for Jane, except to change her class schedule. No one told Jane, or her mother, that under Title IX, a critical federal law that prohibits sex discrimination in education, her school had to investigate her complaint and take measures to ensure she felt safe at school.
Jane’s experience unfortunately isn’t rare. But last year, the Trump Administration chose to complicate how schools respond to sexual violence under Title IX, making a response optional at times or, worse, prohibited.
In November 2018, the Trump’s Department of Education proposed radically weakening protections against sexual harassment, requiring schools to do less in response to it. The proposed changes were so bad that it drew over 120,000 public comments, with an overwhelming majority in opposition to the changes.
But the rule was made final last May and went into effect shortly thereafter on August 14, in the middle of the global pandemic when the Department should have instead prioritized providing critical resources for students and schools to help them transition into remote learning.
Sexual harassment is insidious — all the more when it happens virtually while students participate in remote instruction from their homes. It happens here and globally. It occurs in Zoom breakout rooms, and other platforms; it's a student taunted on TikTok, and another harassed via direct message during her remote class instruction. These are a handful of examples that we know about, but they are the tip of the iceberg of how harassment has continued to rise in various electronic forums during remote learning.
Since the start of the pandemic, there has reportedly been a nearly 80 percent increase in online bullying and harassment. Some student survivors who were raped or sexually assaulted before the pandemic are now being stalked by their perpetrator and/or their friends in various online forums.
But the Trump Administration’s rule provided no direction on how schools should respond to sexual harassment that occurs during remote learning. The rule prohibits schools from investigating sexual harassment, dating violence, stalking, and sexual assault that occurs outside of an education program or activity. So what happens when students experience harassment during remote learning? Josephine O’Brien, a student activist and policy organizer with Know Your IX, noted that the rule’s exclusion of harassment occurring outside of an educational program or activity, including many off campus incidents, is nonsensical when “off campus” applies to every student attending school remotely from their home.
The rule also didn’t address the impact of a remote learning environment on school hearings. Maha Ibrahim, an attorney with Equal Rights Advocates, detailed the experience of one survivor who was told she’d have to sit through an 8-hour hearing about her sexual assault from her home on Zoom. Her school told her that her abuser had a right to watch her during the hearing, until her attorney intervened. Because the hearing officer still had to watch her during the hearing, she bought two devices so that her camera was running on one, and her speaker on the other. The school also had not planned for her to meet with her advocate privately, until her attorney advocated that the parties have separate “Zoom Rooms.” Ibrahmin noted that these virtual hearings can be triggering for survivors as they are forced to confront their abusers on a platform that is their only access to education now and for the foreseeable future.
School districts should modify their Title IX processes to specifically address claims of harassment occurring during remote learning, including how they would provide harassed students with the relief they need in light of remote learning.
As attorneys and advocates we see first hand just how troubling the Title IX rule change is, and the potential ramification it has on the current school year, and very likely the next as well. Not only does it not address the unique challenges posed by COVID-19, but it will contribute to more underreporting and further silencing of survivors.
The Biden-Harris administration can and should do better. First, the Title IX rule needs to be repealed, which President Biden has committed to — but supporting survivors can’t wait. The Department of Education should immediately address Title IX obligations in light of COVID-19 and offer assistance to ensure schools protect students’ rights. And most importantly, the administration should meet with and listen to students and survivors about their experiences and what they need to feel protected during the COVID-19 learning environment, and beyond.
*In order to protect the survivor’s privacy, the authors used a pseudonym in this article.
Shiwali Patel is the Director of Justice for Student Survivors at the National Women’s Law Center, and Amy Leipziger is a senior staff attorney.