ABC has badly mischaracterized Education Secretary Betsy DeVos’ proposed changes to Title IX, the federal statute dealing with campus sexual misconduct.
“One of the biggest changes to the rule would be a new definition of sexual harassment,” writes ABC’s Anne Flaherty. “Under Obama, it was defined it as ‘unwelcome conduct of a sexual nature.’ The new rule would define sexual harassment as unwanted sexual conduct that is ‘so severe, pervasive and objectively offensive that it denies a recipient’s education program or activity.'”
So far, her description is correct. (For more on why such changes are good for students’ due process and free speech rights, read this post.) But what comes next is totally false:
That definition would be significantly more difficult to prove because the victim would have to prove the misconduct prevents them from returning to school.
No. The new standard does not require victims to show that they can’t return to school. Indeed, it doesn’t require them to leave school in the first place. What this new standard says is that severe, pervasive, objectively offensive sexual harassment that negatively impacts a student’s ability to attend class is a form of discrimination, because it denies the student’s right to an education. Sexual conduct that satisfies the severe, pervasive, and objectively offensive threshold—the legal standard for workplace harassment—will be held to violate Title IX, even if the conduct did not literally cause the student to flee campus but merely makes the student’s life unpleasant.
Unfortunately, ABC’s mischaracterization of the standard is already being parroted by the Daily Kos. This is how fake news spreads.
If would be great if a civil-liberties-minded organization in good standing with the left could step up and explain why Title IX reform is necessary and long overdue. Unfortunately, the American Civil Liberties Union has opted to go another route.