Story at a glance
- Title IX is a federal civil rights law that prohibits sex discrimination in an education program or activity. The Title IX regulations provide protections and process for those involved in cases of sexual harassment and assault on school campuses.
- Education Secretary Betsy DeVos recently released the final regulations to Title IX, which include new protections for the accused.
- The new regulations narrow the scope of what can be defined as sexual harassment under Title IX, causing concern amongst victim advocates.
- Learning institutions worry about the short timeline they’ve been given to implement said changes before a deadline of mid-August amidst a global health pandemic.
The Department of Education recently announced new federal regulations to Title IX, which create new rules for how institutions address and respond to reports of sexual harassment, sexual assault, domestic violence, dating violence and stalking on their campuses.
Institutions are now scrambling to navigate how they will implement the changes before a not-too-distant deadline of Aug. 14 while also navigating challenges brought on by the coronavirus pandemic, such as facilitating remote learning environments and planning for many uncertainties around enrollment numbers, possible budget shortfalls and whether and when students will return to campus in the fall.
A narrowed hope for victims
The final regulations are broad ranging, touching on various aspects of an institution’s policies and procedures. They narrow the scope of conduct covered by Title IX while also expanding procedural requirements for the complaint resolution process, no longer requiring coaches, educators and other employees at colleges and universities to report allegations of sexual misconduct.
A new provision also mandates that every institution must hold live hearings with an opportunity for cross-examination, though students are able to request that these be conducted in separate locations. In addition, under the final regulations, institutions must provide the parties with access to information collected during the investigation that is directly related to the allegations and an opportunity to respond to that evidence and to the investigation report prior to a determination of responsibility. Other notable changes include new record-keeping requirements and mandatory appeals. The new regulations apply to higher education institutions and K-12 schools that receive federal financial assistance.
Kathryn Nash, a higher education attorney at Lathrop GPM, tells Changing America that one significant change for learning institutions is the narrowing of the scope of what falls under Title IX, namely what can now be defined as sexual harassment in the first place. Nash leads sexual misconduct and harassment investigations, revising institutional policies and training Title IX coordinators, investigators and adjudicators throughout the country.
She explains that under the new regulations, to meet the definition of sexual harassment, the conduct “has to be so severe, pervasive and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity, so that's definitely a higher burden.”
In addition, Nash tells us that institutions can no longer call upon Title IX for cases that take place off campus, even if the victim and accused are both students. “If there's a sexual assault or sexual harassment involving two students off campus and it has nothing to do with the institution, maybe it's just at an apartment that isn't owned or controlled by the school, it would not fall into the scope of Title IX,” she says. “And then finally the conduct has to have occurred in the United States against someone who's also in the United States, so for students who are on a study abroad trip, even if it's school sponsored, it's not going to come within Title IX.”
The previous administration's guidelines for schools, which were issued in a 2011 memo and were referred to as "dear colleague" letters, presented a broader definition of sexual harassment. While under the new regulations schools will be required to investigate the allegations in any formal complaint, they can also now dismiss any allegations of conduct that don't meet this stricter definition of sexual harassment.
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“While the scope of what's falling under Title IX has been narrowed...there's nothing in these regulations that prevent institutions from continuing to prohibit and take responsive action to all the same conduct that they had previously taken action, it just doesn't fall into the purview of these regulations or under the purview of Title IX,” explains Nash.
An increase in rights for the accused
The new rules are a significant side step from those set in place by the Obama administration, seeking to deliver on Education Secretary Betsy DeVos' promise to bolster due process in Title IX sexual misconduct investigations, which have been protested by accused students as being biased toward alleged victims.
DeVos also referred to "more than 124,000 public comments" the department received when the Title IX rules were first published in November 2018. She says that the final regulations are a result of "years of wide-ranging research, careful deliberation and critical input."
"Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault," DeVos said in a statement. "This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process."
The new regulations give higher learning institutions discretion in deciding whether their staff and faculty will report allegations to the Title IX office, stating that this is "respecting the autonomy of students" who might not want their information shared or to initiate a formal investigation, unlike at K-12 schools where all cases must be investigated and adjudicated when a formal complaint is filed.
“I think you'll have mixed reactions,” says Nash. “I think that people who are more focused on the victim’s perspective are going to be concerned and disappointed by some of the new requirements for the proposed regulations.”
One aspect of the new regulations that has received the most blowback by critics is the introduction of live hearings and the allowance for cross-examinations — a method often condemned by survivors and victim advocacy groups. Cross-examinations won't be done by the students personally, but by someone the school deems as an "adviser." Opponents of the proposed regulations include the National Women's Law Center, which said last Wednesday that it intends to sue the Education Department.
Critics have also remarked on the timing of the proposed regulations, citing that they have nothing to do with the current coronavirus pandemic. Democrats on the House Committee on Education and Labor said on Twitter, "Our education system is facing an unprecedented crisis. But instead of focusing on helping students, educators, and schools cope with [COVID-19], Secretary DeVos is eroding protections for students' safety.”
“Coming at it from the perspective of an accused student or due process perspective, they will be happy with the changes because they are requiring institutions very prescriptively to add significant process to their response to sexual harassment under Title IX,” says Nash.
DeVos, meanwhile, continues to defend her choice to move forward with the proposed regulations, saying that “reality is that civil rights really can't wait, and students' cases continue to be decided,” adding, “we've been working on this for more than two years, so it's not a surprise to institutions that it was coming.”
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