Senators introduce legislation to bolster Title IX protections

Sens. Bob Casey (D-Pa.) and Mazie Hirono (D-Hawaii) will introduce new anti-harassment legislation Thursday that aims to strengthen Title IX protections for student survivors of sexual assault or harassment.

The Students’ Access to Freedom and Educational Rights (SAFER) Act would bring Title IX, which prohibits educational institutions receiving federal funding from discriminating based on sex, more in line with Title VII, which prevents sex discrimination in the workplace, according to details of the bill, shared first with The Hill.

Standards for Title IX sexual harassment complaints are currently far higher than those applicable to workplace sexual harassment lawsuits, with Title IX plaintiffs required to prove they were subject to “severe, pervasive, and objectively offensive harassment” that school administrators were aware of but failed to act on.

In contrast, under Title VII, a plaintiff experiencing harassment by a coworker or other non-supervisor must only show that their employer knew about the harassment and responded negligently.

Casey and Hirono’s SAFER Act would amend Title IX and other statutes prohibiting sex-based discrimination to remove “unreasonably burdensome” standards for private harassment lawsuits seeking damages.

“So many students who endure sexual harassment or assault experience isolation, fear, and difficulty focusing on their education as they process a traumatic ordeal,” Casey said Thursday in a statement to The Hill. “To add insult to injury, students who report their experiences face an uphill battle to seek justice.”

“We cannot go backwards,” Casey added. “School should be a safe place, from early education all the way to institutions of higher learning.”

Thursday’s bill would also bolster protections against harassment based on sex – including sexual orientation and gender identity – and improve institutional supports for student survivors. It also calls for the development and administration of a climate survey on K-12 students’ experiences with domestic and dating violence, sexual assault, sexual harassment and stalking.

Training requirements and a grant program would be established under the SAFER Act to ensure Title IX coordinators and school staff are adequately equipped to foster a safe learning environment for all students.

Religious schools would still be able to request a religious exemption under Title IX but must be transparent when such an exemption is requested.

Cosponsors include Sens. Cory Booker (D-N.J.), Sheldon Whitehouse (D-R.I.) and Tammy Baldwin (D-Wis.). A companion bill is slated to be introduced Thursday in the House by Reps. Jahana Hayes (D-Conn.), Debbie Dingell (D-Mich.) and Deborah Ross (D-N.C.).

“Despite the progress Title IX has created, too many students—especially LGBTQ+ students, pregnant and parenting students, students of color, and students with disabilities—are still deprived the full protections of the law,” Hirono said Thursday. “This legislation will move us closer to fulfilling our promise of ensuring every student can get the quality education they deserve.”

Both Hirono and Casey have been critical about changes made to Title IX under the Trump administration by former Education Secretary Betsy DeVos that rolled back protections for student survivors and narrowed the definition of assault and harassment to exclude those that occurred off school grounds.

Casey in 2017 decried the move as an “insult to survivors of sexual assault” that will make holding violent perpetrators accountable more difficult.

Speaking to an audience of invited guests at George Mason University in 2017, DeVos said Obama-era guidelines for campus sexual assault enforcement were “flawed” because they failed to clearly define assault and harassment and lacked adequate protections for the accused.

“Any perceived offense can become a full-blown Title IX investigation,” DeVos said at the time. “But if everything is harassment, then nothing is.”

Title IX reform advocates have argued DeVos’ rule sets a harmful and dangerous precedent that a survivor’s assault or harassment must be “bad enough” to warrant filing a Title IX complaint or launching an investigation.

“Violence is violence,” Zoey Brewer, a senior at the University of Tennessee and youth organizer with Know Your IX, a survivor-led group empowering students to end sexual and dating violence in their schools, told The Hill. “It’s unacceptable regardless of how bad you think it is or how bad your school thinks it is.”

Groups including Know Your IX and the National Women’s Law Center are backing Casey and Hirono’s SAFER Act, but agree that even if the bill passes, more work still needs to be done.

DeVos’ guidelines on schools’ responsibilities under Title IX will remain in place until proposed amendments pitched by the Biden administration this year are approved. 

The Education Department in June said proposed changes to Title IX would expand survivor protections and broaden the definition of sex discrimination to include sexual orientation and gender identity to strengthen the rights of LGBTQ students.