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College Sexual Misconduct and New Title IX Regulations
- Education Sec. Betsy DeVos issued new Title IX rules regarding sexual misconduct.
- New requirements reaffirm that the accused are "innocent until proven guilty."
- Some say the new rules uphold due process; others say they walk back victims' rights.
Secretary of Education Betsy DeVos announced final Title IX rules that will change how sexual misconduct allegations are handled in education. The Obama administration issued broad guidance on schools' responsibility for dealing with sexual harassment in 2011 and 2014, but the new regulations will carry the full force of the law.
While Title IX is known for protecting students' equal access to sports and facilities, it also directs how schools respond to sexual harassment and sexual violence — common issues for college campuses. According to a 2019 study by the Association of American Universities (AAU), the overall rate of nonconsensual sexual contact at college was 13%.
AAU's 2019 study also found that "students are more knowledgeable than they were four years ago about what constitutes sexual assault and misconduct, how to report it, and what resources are available to victims."
“The new rule explicitly seeks ‘a reduction in the number of Title IX investigations’ schools undertake by making it harder for sexual harassment victims to come forward.”
Many believe the Obama-era Title IX guidance helped empower victims and advance civil rights on campus. Others, including Secretary DeVos, call schools' investigations "kangaroo courts" that lack due process and fail to protect students equally, which is what the act is intended to ensure. Dozens of students have won court cases after campus proceedings found them guilty of sexual assault.
Although the established approach used to address sexual misconduct has critics on both sides, many civil rights and higher education groups are against the new guidelines. Critics fear that the higher standards of proof and reduced pressure on colleges to act will walk back progress.
According to the National Women's Law Center (NWLC), "The new rule explicitly seeks 'a reduction in the number of Title IX investigations' schools undertake by making it harder for sexual harassment victims to come forward."
What Is Title IX?
Title IX is a federal civil rights law that prohibits sex discrimination in schools. Title IX addresses equal access to education, sports, and facilities, and it holds schools liable for student-on-student and employee-on-student sexual harassment. Schools that fail to uphold Title IX risk losing federal funds.
While reports of [burglary and robbery] have gone down over the past 10 years, reports of forcible sex offenses have risen.
Campuses are required to address sexual misconduct under both Title IX, first enacted in 1972, and the 1990 Clery Act. The Clery Act requires all universities and colleges receiving federal student financial aid to report statistics on crimes that occur on and near campus.
Maintaining campus safety requires students to exercise the rights guaranteed by both pieces of legislature. Students should be aware of the realities of campus crime, and individuals who experience sexual harassment on campus should be able to seek meaningful protection and recourse.
Laws related to campus sex offenses are more critical now than ever. While reports of property crime on campus — including burglary and robbery — have gone down over the past 10 years, reports of forcible sex offenses have risen.
What's Different About the New Title IX Regulations
When DeVos' final Title IX rules go into effect in August, schools will have to make significant changes to how they respond to sexual misconduct allegations, how investigations are handled, and even which party gets the benefit of the doubt.
|Old Title IX Rules||New Title IX Rules|
Schools are required to investigate all complaints of "unwelcome conduct of a sexual nature."
Schools must investigate allegations that meet one of three definitions for "sexual harassment":
Schools are liable for all student complaints of sexual harassment, regardless of where the harassment occurred.
Schools must investigate student sexual harassment allegations that took place anywhere the school has "substantial control," including off-campus buildings owned or controlled by officially recognized student organizations, like fraternities and sororities.
Schools have a responsibility for any employee-on-student or student-on-student sexual harassment if a "responsible employee" knew or should have known about it.
Schools can only investigate reports of sexual harassment filed by a formal complaint to a Title IX coordinator or school official with "the authority to institute corrective measures."
Victims can still file complaints after graduating, transfering, or dropping out, whether or not the respondent employee or student is also still affiliated with the school.
Investigations can only proceed if the plaintiff and the respondent are both still affiliated with the school. Parents can now file complaints on behalf of their children.
Schools must resolve Title IX complaints within 60 days.
No set time frame. Schools must promptly respond to misconduct in a manner that is not "deliberately indifferent" and conclude the grievance, informal resolution, and appeals process within a "reasonable" time frame.
Schools require a "preponderance of evidence" to find a student or employee guilty of sexual harassment.
"Preponderance" is often described as 50.01% certainty of guilt — more likely guilty than not. It's the standard amount of evidence required for civil rights cases and is considered the most equitable option by some.
Schools may choose between requiring a "preponderance of evidence" OR "clear and convincing evidence."
"Clear and convincing" is a higher burden of proof that some see as favoring respondents. Clear and convincing evidence means "highly and substantially more likely" guilty than not.
Many schools use the "single-investigator" method:
After a student reports an assault to a "responsible employee," the employee contacts a Title IX officer. If the officer determines a full investigation is needed, a staff member or external investigator contacts the parties, interviews witnesses, and gathers evidence to produce a report. Both parties comment on this report at panel hearings.
Schools are required to hold a live cross-examination before making a judgment:
After a student or parent reports an assault to a Title IX officer or other official and an investigation is needed, another party will review the investigator's findings and draw a conclusion. Schools will then hold a live hearing or video conference to allow for cross-examination. The parties are prohibited from conducting the cross-examination themselves. Questions must be posed by the parties' "advisors" who may be attorneys.
Title IX Changes Could Bring Balanced Justice
Nancy Gertner, a Harvard law professor and retired federal judge, said of Title IX sexual misconduct proceedings in 2015, "It is the worst of both worlds, the lowest standard of proof coupled with the least protective procedures."
Critics say the complaint process used by colleges today is rushed and skewed. To make up for decades of sweeping sexual harassment under the rug, colleges have overcorrected by adopting a "guilty until proven innocent" stance towards accused students. By discriminating against men in sexual harassment cases, schools are undermining Title IX as they attempt to follow it.
“These [new] regulations — while imperfect — go a long way towards ensuring our schools do right by all.”
According to Joe Cohn, legislative and policy director at the Foundation for Individual Rights in Education, "There is no simple way to address sexual misconduct on college campuses. Doing so effectively and fairly requires championing the rights of all students, whether they are complainants or the accused."
While sexual misconduct cases are sensitive, the high stakes for all parties involved mean that strong "procedural safeguards" must be in place, Cohn says. "Allegations must not be ignored or prejudged. These regulations — while imperfect — go a long way towards ensuring our schools do right by all."
According to Secretary DeVos, the existing system lacks fairness. The new rules underscore the presumption of innocence, and more robust requirements include giving all parties information about the allegations and access to evidence. The two parties must also submit to a live cross-examination with all questions asked by advisors. Schools favoring or disfavoring either party in this process would be found in violation of Title IX.
Title IX essentially guarantees students the right to learn and requires that schools remove gender-based impediments to learning. Since men of color are disproportionately punished in student sexual harassment cases, these regulations could help narrow educational gaps created by discrimination.
Title IX Protected Victims, Now It May Shield Perpetrators
According to the National Women's Law Center, the updated rules "will make schools more dangerous for all students." Stricter standards for what qualifies as sexual harassment could force students suffering quieter forms of abuse to wait for things to escalate before getting help. The more confrontational claims process could also convince even more students to stay silent.
According to the Department of Justice, about 80% of sexual violence cases go unreported, and the new rules threaten to suppress the voices of even more victims. Several college student survivors point out that if the new rules had previously been in place, their schools would have had no responsibility to stop serial predators.
Under the new rules, a victim must initiate a complaint with the proper authorities — seeking help from an RA no longer cuts it. In the past, lodging a complaint was enough to trigger some protective measures. However, starting in August, schools will be required to start all sexual harassment investigations with the presumption that no sexual harassment occurred.
“Survivors … will get the message loud and clear that there is no point in reporting assault.”
While "innocent until proven guilty" is a courtroom standard, presumption of innocence is not required for other school investigations of student or employee misconduct, like situations dealing with physical assault or religious harassment.
The new investigation process will also require face-to-face meetings between the complainant and the accused. Many say cross-examination would reignite trauma and is inappropriate for the campus environment. There's no courtroom on campus, and Title IX is a civil rights law, not a criminal law. Civil cases don't carry criminal penalties and don't require criminal proceedings.
While students will be held to new standards for proving their case, colleges will have reduced responsibility. Previously, schools were directed to fully address complaints within 60 days. Moving forward, there will be no set timeline, and a school's response to a complaint will only be in violation of Title IX if it's "deliberately indifferent."
Education policy analysts and school administrators have taken issue not only with the rule changes, but also with the timing of their release. Against the petitions of schools, organizations, and politicians, the Department of Education issued these new rules while most campuses, and most of the country, remain closed.
Impact of New Title IX Rules
Responding to the proposed Title IX changes last winter, Harvard law professor Jeannie Suk Gersen predicted, "The moment the final rules are issued, the agency will be sued over them."
There are already lawsuits against the Department of Education, but individual colleges may also be sued over the rule changes. The Trump administration anticipates the tighter Title IX rules will save schools hundreds of millions of dollars within the first 10 years due to fewer cases. But colleges that don't take on Title IX complaints could have costly legal battles with students.
If the new rules quash sexual harassment complaints, more students may turn to civil litigation.
Taking legal action has always been an option for students who felt their school failed to respond appropriately. If the new rules quash sexual harassment complaints, more students may turn to civil litigation.
When the new regulations passed through a "notice and comment" period in late 2018, over 120,000 people submitted their concerns. Some controversial elements, like having students cross-examine each other in person, were amended in the final rules.
However, other contentious points, including the Supreme Court's narrow definition for sexual misconduct as "severe, pervasive, and objectively offensive," will pass into law on August 14. Reversing these laws would take an act of Congress, and likely require Democrats to win big in November.
If you or someone you know has experienced sexual assault, please seek legal counsel. If you are experiencing a life-threatening situation, seek help or dial 911.