The Wrong Lesson: The Radical Re-Write of the Definition of Sexual Harassment in the Proposed Title IX Rules

Only a handful of days remain to make public comments on the problematic Title IX rules proposed by Secretary of Education Betsy DeVos (comments have to be submitted by January 30). If you’re thinking about submitting a comment, there are resources available on writing an effective comment and plenty of reasons to get your keyboard. For example, the proposed rules will require survivors to submit to cross-examination by an advisor of the accused’s choosing and create significant barriers to reporting.

The proposed rules also include a radical re-write of the definition of sexual harassment that has serious implications for what we teach this country’s young people about why sexual harassment and assault matter.

The new rules require that schools dismiss complaints that do not involve “unwelcome conduct on the basis of sex that is so severepervasive, and objectively offensive that it effectively denies a person equal access to the [school’s] education program or activity” (§§ 106.30, 106.45(b)(3)). According to the new rules, then, sexual harassment only matters after severe harm has already occurred – such as after a survivor has already left school entirely. In this, the proposed rules say that harassment matters only because of the consequences to an individual survivor and not the occurrence of sexual harassment.

Here’s the problem – or at least a problem – with this approach. Imagine a man uses the same sexually explicit words and graphic images to abuse two different women. One woman leaves college; the other does not. Though the man engaged in the same behavior, what he did can be investigated as sexual harassment in one instance and not in the other. The proposed rule reverse-engineers the definition of harassment based on the way survivors react rather than the behavior of the harasser. This puts the onus of defining why sexual harassment matters on the shoulders of survivors: If they can’t demonstrate severe harm, it doesn’t matter that they were sexually harassed.

An enormous body of research clearly establishes that, on average, sexual harassment and assault result in short- and long-term physical, cognitive, emotional, interpersonal, and behavioral harm. Research also documents that the impact of sexual harassment and assault on survivors varies. Some women experience physical and mental health consequences; others don’t. Some women are aware of and able to describe the immediate impact of abuse, others aren’t. Saying sexual harassment matters only after survivors can demonstrate severe harm fails to recognize the diverse responses humans have to traumatic stress and perversely penalizes resilience in the face of abuse.

This is not to say that harm should not be considered in some contexts. For example, victims have to demonstrate that they suffered harm to get monetary restitution through the civil legal system following sexual harassment or assault. Having to demonstrate harm when asking for monetary restitution for harm makes sense. However, students who report sexual harassment and assault to their schools are not asking for financial damages – they are asking to learn in an environment where they are not sexually abused.

In my own field of traumatic stress, we have used research on the harm that results from trauma to make the case that that practitioners and policy makers should pay attention to traumatic stress. Studies in the 1980s and early 1990s, for example, were critical to documenting the psychological symptoms people often experience in the aftermath of traumas. That research led to establishing posttraumatic stress disorder (PTSD) as a diagnosis as well as increased policy, practice, and research attention to trauma.

So, documenting the harm that results form sexual harassment and assault to survivors has helped make the case that health and legal systems should pay attention to these forms of abuse. However, the new Title IX rules throw into sharp relief the limits of harm-based arguments, particularly when applied to individual students. For example, we know from work on trauma-informed schools that narrowly thinking about the impact of trauma on one student fails to recognize how trauma affects the learning environment for all. If sexual harassment matters to our schools only because it causes severe harm, and a particular student does not experience severe harm, then the new rules say sexual harassment doesn’t matter. That doesn’t make any sense.

In our larger national conversations, it’s time to step back from harm-focused reasoning to re-ask: Why do sexual harassment and assault matter to our schools?

Our educational system plays a critical role in socializing young people into the norms and values upon which our communities and democracy depend. Sexual harassment and assault violate a fundamental social contract between human beings who share the halls of schools and streets of neighborhoods: that we will not abuse each other in the most intimate way possible. If our educational system defines sexual harassment as mattering only when it causes harm to a specific person, we teach that abusing a person isn’t the wrong part. Abusing a person who is harmed is. That’s the wrong lesson – for schools and for society. And the wrong policy.