Schools and colleges face a major overhaul in how they handle sexual misconduct allegations after Education Secretary Betsy DeVos rebuffed calls to delay the sweeping changes to the regulation until the conclusion of the national coronavirus emergency.
Title IX, which bars discrimination on the basis of sex in federally funded schools will offer new rights to accused assailants and require colleges and universities to respond to formal complaints with courtroom-like hearings. The final rules, which take effect in August, codify for the first-time sexual assault grievance proceedings that until now were covered by Department of Education guidance and recommendations. The new rules deliver colleges and universities firm directions on how they must deal with one of the biggest issues that have plagued their campuses for decades, allegations of sexual assault and harassment.
Among the most significant changes are new requirements aimed at beefing up protections for accused college students, by mandating live hearings by adjudicators who are neither the Title IX coordinator nor the investigator, and real-time cross examination of each student by the other student's lawyer or representative. The new rule bars colleges and universities from using a single official to investigate and judge complaints, a popular model, and instead creates a judicial-like process in which the accused has the right to a live hearing and to cross-examine accusers.
In the case of cross-examination, a hearing officer must first decide if the questions are relevant, and questions about a person’s sexual history are not considered relevant unless they could establish consent or prove that someone other than the accused student committed the misconduct. Moreover, the new rules prohibit students from questioning each other in personal confrontations, leaving that to advisers and lawyers. The rules also allow colleges and universities to hold hearings live or virtually, and to grant any request for the two parties to be in separate rooms while the hearing takes place. Cases involving students can also be resolved through mediation, but those involving both staff and students cannot.
Another significant change in the rules is that the Department has extend responsibility beyond campus life, saying that schools would now be obligated to investigate allegations of misconduct that occur in “buildings owned or controlled by a student organization that is officially recognized by a postsecondary institution,” such as a fraternity or sorority house but a private off-campus apartment, would not. Moreover, jurisdiction also extends to “locations, events, or circumstances” over which the school exercised “substantial control” over students and the activities in which the harassment occurred. For example, a school would be obligated to respond to an alleged incident which occurred during a school field trip but not one that occurred at a private house party. Additionally, the new rules would exclude actions that happen to students studying abroad, preventing any kind of "overreach" by colleges and universities.
The final regulations also make exceptions for primary, secondary and other specialized schools, amid concerns that the regulations would have subjected small children to the same treatment as young adults. Students in primary and secondary schools can report their claims to any staff member, unlike colleges, where reports must be made to a high-ranking official. Additionally, those schools are not required to hold hearings or cross-examinations, though parties must be able to submit written questions.
The Title IX regulation will offer new rights to accused assailants and require colleges to respond to formal complaints with courtroom-like hearings. As exemplified by the Department’s use of the Supreme Court’s definition of harassment: “Unwelcome conduct that is so severe, pervasive and objectively offensive" that it effectively denies a person access to the school’s education program or activity. In other words, the definition of sexual harassment narrows, so that only behavior that is "severe, pervasive and objectively offensive" warrants investigation but the final rule added that conduct could be harassment if “a reasonable person” would say it was. The new rules also added dating violence, domestic violence, stalking, and online harassment to the kinds of offenses that schools must also respond to.
The Department went on to clarify that sexual assault, dating violence, domestic violence and stalking are now forms of sexual harassment, and added definitions for those infractions that align with the Clery and Violence Against Women Acts. However, those allegations would not have to meet a severe and pervasive standard.
As issued, the new guidance requires accused students to be given written assurance that they are presumed innocent. Schools would not be able to impose any disciplinary actions on students accused of misconduct until the end of the case, though they retain the ability to remove students from campus if they are found to pose a risk.
The new guidance also added an extensive section to combat retaliation against people who bring forward complaints of sexual misconduct. In other words, a school cannot punish a student or other complainant for making a claim just because a case resulted in an unfavorable outcome. Moreover, schools are warned against disciplining students for actions revealed during Title IX proceedings, such as underage drinking or sexual contact on campus.
Under the new regulations, students will also have a right to appeal, and schools are allowed to raise the evidentiary standard from "a preponderance of the evidence" to that of "clear and convincing," making it harder to find a student responsible for misconduct.
Nonetheless, colleges and universities have objections of their own, first and foremost that of being forced to play the role of virtual trial courts to adjudicate intensely complex cases. Colleges and universities have responded by saying, "we are not set up to do that nor do we have the legal authority to do that.” “We want to teach students; we don't want to run courts."
Schools are also objecting to the timing. The Department is requiring the changes to be implemented by August 14th, even though schools are already overwhelmed with managing their sudden switch to online learning because of COVID-19. School’s have gone on to say, "this is an extraordinarily complicated piece of legislation that the administration has spent more than three years developing, and now they want us to implement it within the next three months. It's truly a mistake to now turn to colleges and universities and say, put it in place in 100 days. It's simply not going to work very well."
The new regulations have been described as a way to "restore fairness and due process to our campuses," arguing that colleges and universities "have often stacked the deck against the accused, failing to offer protections such as a presumption of innocence or adequate ability to rebut allegations." The new regulations will protect the civil rights of students and will fight to ensure that every college campus is free from the fear and threat of discrimination, harassment or sexual violence.
Title IX’s objective is to ensure that all students can pursue education free from discrimination, harassment, and sexual violence. However, those accused of sexual assault are also owed due process, and the regulations owe it to all students to ensure that campus judicial procedures operate consistently within our nation's fundamental belief in fairness. The new regulation respects and supports victims and preserves due process rights for both the victim and the accused.