Proposed Title IX Rule Changes Provide Clarity for Schools, Support for Survivors and Due Process Rights for All
In November 2018, the U.S. Department of Education (“DOE”) released its proposal for improving a school’s response to sexual harassment and assaults. The proposed regulation addressing Title IX, the Federal Civil Rights Law that prohibits discrimination on the basis of sex in education programs or activities that receive federal funding, was in the works for more than a year with input from students, advocates, school administrators and other stakeholders, with strong support from Betsy DeVos, the Secretary of Education.
The DOE’s proposed rule takes important, and controversial, steps of defining sexual harassment under Title IX, how it should be reported, how schools should investigate such reports and insure that due process protections are in place for all students.
The proposed rule, which is not yet final, would require schools to respond meaningfully to every known report of sexual harassment and to investigate every formal complaint.
The proposed rule also highlights the importance of supportive measures designed to preserve or restore a student’s access to the school’s education program or activity, with or without formal complaint. Supportive measures could include the following: academic course adjustments, counseling, no-contact orders, dorm room reassignments, leaves of absence and/or class schedule changes.
When there has been a finding of responsibility, the proposed rule would require remedies for the survivor to restore or preserve access to the school’s education program or activity. The proposed rule would require schools to apply basic due process protections for students, including a presumption of innocence throughout the grievance process; written notice of allegations and an equal opportunity to review all evidence collected; and the right to cross-examination, subject to state law “rape shield” protections.
Colleges and universities would also be required to hold a live hearing where cross-examination would be conducted through the party’s advisors. Personal confrontation between the complainant and the respondent would not be permitted. Moreover, to promote impartial decisions, schools would not be allowed to use a “single investigator model.” If an appeal is available under the school’s policy, both
parties must have that right.
Finally, consistent with court rulings in Title IX cases, the proposed rule defines sexual harassment as unwelcomed conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.
The goal of the proposed rule is to ensure that Title IX grievance proceedings are more transparent, consistent and reliable in their process and outcome.
Under the prior procedures issued by the Obama administration, the “Dear Colleague letters,” there were serious concerns over the far reaching effect those procedures had on college campuses. Under the prior policies, virtually everyone on campus was deputized to report anything that could constitute a sexual violation, including rumors and hearsay. Most school employees were designated as mandatory reporters responsible for alerting Title IX officials about possibly questionable sexual encounters, even if a supposed victim had no interest in reporting. As a result, students were being labeled as perpetrators and punished even when no victim came forward to press any claims. Moreover, one of the most criticized mandates was the requirement that schools assess allegations of sexual misconduct using the lowest legal standard or a “preponderance of the evidence.” Under the proposed rules, schools would have the option to use a higher standard of “clear and convincing evidence” in evaluating Title IX claims.
The proposed rules would also allow for an accused victim to cross-examine his or her accuser. Under the prior guidance, such a practice was discouraged.
Time will tell whether the proposed regulations achieve their stated objectives. The 60 day comment period on the proposed rule changes has closed and now the DOE is wading through the more than 100,000 comments to determine what, if any, changes should be made to the proposed rule that process could take many months to complete. However, the proposed changes are seen by many as a good start in reigning in the excesses of the prior Title IX procedures.