WASHINGTON — Education Secretary Betsy DeVos’s pending rules on sexual misconduct at the nation’s schools and colleges will include provisions to shore up protections for victims of stalking and dating violence, a response to lethal attacks that have underscored the weakness of current policies.
The rules will for the first time cement domestic violence, dating violence, and stalking as forms of gender discrimination that schools must address under Title IX, the federal civil rights law that prohibits sex discrimination in education programs that receive government funding.
In the past, the Education Department has issued guidance on how schools should handle sexual misconduct on campus and interpreted Title IX to require universities to combat sexual assault in particular. The department’s new rules would go further, adding definitions for domestic violence, dating violence, and stalking as misconduct that universities must tackle or risk federal investigations and a loss of funding.
Victims’ rights advocates and lawyers say that while many schools have presumed such infractions fall under the broad umbrella of sexual harassment, not all have trained their staffs to address them, let alone treat them as civil rights violations.
“There’s still a lingering idea that dating violence is an interpersonal issue that two folks need to work on, something that just happens between men and women, rather than seeing it as a form of violence that has an impact on education,” said Sage Carson, manager of the victims’ rights advocacy group Know Your IX.
When the Title IX rules are released in the coming weeks, the domestic violence provisions are expected to toughen standards for schools from Obama-era guidance letters, according to people familiar with the department’s most recent drafts. A guidance document issued in 2011 mentioned dating violence only in footnotes.
“Dating violence often gets lost in the harassment issues, and there are issues in domestic relationships that are just as toxic and dangerous,” said Matt McCluskey, whose 21-year-old daughter, Lauren McCluskey, a University of Utah track star, was hunted down on campus, kidnapped and killed by a former boyfriend in 2018. Lauren McCluskey would have celebrated her 23rd birthday on Wednesday
A spokeswoman for the department declined to comment because the rules were not final.
Lauren McCluskey’s death is one of several cases officials considered when they settled on the new changes. Her parents, in a lawsuit against the University of Utah, said the school violated the civil rights law by not investigating more than 20 reports of their daughter’s abuse, which were brought to the attention of at least six staff members.
Instead of taking action, the lawsuit said, school officials assumed she would want “privacy,” and “only considered threatening Lauren with guest policy violations” for allowing her boyfriend, who was not a student, to live in her dorm room. He was later found to be a felon and sex offender on parole who had lied about his identity.
The university never investigated reports that Lauren McCluskey had been tracked around campus, that she had bruises on her body or that her friends feared for her life, the lawsuit said.
Her parents were on a cellphone call with her when they heard her last four words — “No, no, no, no” — as she was dragged into the back of a car and shot seven times.
The new provision in the Education Department’s new rules would be a small victory for victims’ rights advocates, who have largely condemned DeVos’s other proposals, which bolster the rights of the accused and generally make sexual misconduct allegations more difficult to pursue on campus. For example, the other proposals require complaints to go through a more rigorous reporting process and courtroom-like proceedings.
Carson said that she considered the dating violence provision a positive development, but, coupled with DeVos’s other proposals, it could be a “double-edged sword” for victims. “Some of the procedures could be extremely dangerous for them,” Carson said.
The department is aligning its regulations with definitions already established in the 1990 Clery Act, which requires colleges to regularly report security issues and criminal acts, and protections outlined in the 1994 Violence Against Women Act.
But the department will also bring the weight of civil rights enforcement to every school in the country, where episodes of dating violence, domestic violence and stalking — collectively known as “intimate partner violence” — have increased in recent years.
In 2017, the year in which the most recent Clery data is available, colleges reported 16,977 instances of offenses that fall under the Violence Against Women Act, compared with 12,232 in 2014. The number of episodes of dating violence, stalking and domestic violence increased each year in all three categories.
The Centers for Disease Control and Prevention said that nearly 1 in 11 female and about 1 in 15 male high school students reported experiencing physical dating violence, and 1 in 9 female and 1 in 36 male high school students reported experiencing sexual dating violence.
Among the more than 120,000 public comments that the department received as it considered sexual misconduct rules, advocates pointed to recent cases of dating violence to illustrate potential policy gaps. Those include Yeardley Love, 22, who was killed by an abusive former boyfriend in her University of Virginia dorm room in May 2010, just weeks before graduation, and Shana Fisher, the first victim of a mass shooting at Santa Fe High School in Texas in May 2018, who had rebuffed the gunman’s aggressive advances for months.
In March 2018, Jaelynn Willey, 16, was shot in the hallway of Great Mills High School in Maryland by a former boyfriend who had harassed and abused her in school after they broke up.
Advocates and lawyers argued successfully that dating violence, domestic violence and stalking should be considered separate from a relatively narrow definition of sexual harassment proposed by DeVos. Under that definition, schools are required to respond only to behavior that is “so severe, pervasive, and objectively offensive” that it “denies a person access to the school’s education program or activity.”
“If we’re essentially saying to a stalking and dating violence victims, ‘Sorry, this isn’t pervasive enough, severe enough or objectively offensive enough,’ they’re not going to come back,” said Cari Simon, a prominent Title IX lawyer and former director of the Congressional Victims’ Rights Caucus. Her comments strongly urged the department to adopt the definitions.
Simon, who generally opposed the regulations, called the addition of the definitions “transformative” for victims of these forms of violence. “They now have rights,” she said.