The Department of Education (DOE), in November of 2018, released its proposed new regulations spelling out how schools and universities should handle complaints of sexual harassment or assault.
If adopted, the new rules will replace much-criticized Obama administration guidelines in a “Dear Colleague” letter sent to schools in 2011, but never proposed for public comment. Again without notice and comment, DOE issued additional directives in 2014.
Secretary of Education Betsy DeVos revoked those guidelines in September 2017, saying they failed to give schools adequate guidance on what behavior was covered, and how misconduct complaints should be handled.
DeVos was far from alone in criticizing the now-discarded Title IX regulations. Some educators complained the Title IX regulations were unclear in some areas. Others objected “guidance” DOE gave in its “Dear Colleague” letter and elsewhere went beyond what the law actually requires. And numerous court decisions have overturned how universities have interpreted and carried out their Title IX obligations.
Under Title IX of the Education Amendments of 1972, educational institutions — from kindergarten through graduate schools — which receive federal financial assistance, including accepting federal student loans, must take certain steps to deal with sex-based discrimination, which the Supreme Court has defined as covering sexual assaults and harassment.
Among the main changes to Obama-era guidance that the newly proposed regulations are: a narrower definition of what constitutes sexual harassment. Instead of the former definition of any “unwelcome conduct of a sexual nature,” the new proposal says it will follow more closely Supreme Court decisions by insisting that the conduct is so “severe, pervasive and objectively offensive” as to deny access to the school’s educational program or activity.
The regulations would also restrict schools’ responsibility to investigate and take act to when an official with enforcement responsibility receives a formal complaint about an incident which occurred on campus or at a campus-sponsored activity. The Obama-era guidance held schools for incidents they should have known about, regardless of where they happened.
One of the most controversial features in the former “guidance” was its insistence that hearings on misconduct decide by using a “preponderance of the evidence” standard, instead of other, more rigorous standards, such as “clear and convincing evidence.” The new proposal would let schools choose either.
It would also require schools to provide protections for the accused, such as a presumption of innocence, an equal right to the accuser to be informed of charges, receive a live hearing, accompanied by an advisor, who will be allowed to cross-examine witnesses. Further, schools could no longer use a single investigator to both probe a complaint and decide on its merit.
Giving a notice of intent to issue more complete and useful regulations and holding a series of meeting with groups and individuals interested in the issue, DOE has been working on better defining school Title IX obligations and procedures for dealing with sexual misconduct and harassment ever since.
The full text of the proposed changes and explanatory materials were published in the November 29 Federal Register.