The U.S. Department of Education Secretary Betsy Devos released her proposed changes to the Title IX law, which would replace an Obama-era guidance on Title IX and sexual assault , in an attempt to better serve students, schools, and protect due process rights of the accused. However, the new guidance she released to the public on November 19th, 2018 has faced backlash because her changes don't seem to do enough to protect students who are victims of sexual assault and harassment. Throughout her changes, there is a lack of clarity in her proposed regulations. Here is a breakdown of DeVos' proposed changes, which covers when an institution is required to take action and how an institution is supposed to respond:
The definition of sexual harassment would be narrower than it previously was. The Obama-era definition of sexual assault was "unwelcome conduct of a sexual nature that includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature." Under the proposed changes, the definition of sexual assault would be "unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity." This definition would narrow the cases that an institution would be required to investigate, and how it would be investigated. Previously, the guidance required an investigation to look at the facts of a case both objectively and subjectively through the eyes of the alleged victim.
An institution would be required to respond to a Title IX allegation when it has actual notice of an alleged incident, only happening when a report is made to a Title IX coordinator or other employee who has authority to take corrective action. This would essentially get rid of a "responsible employee's" job, where if a Title IX violation were brought to their attention, the institution would have an obligation to respond.
Off-campus incidents may not be required to be looked into by an institution, it depends on a variety of factors relying on the scope of "education program or activity." Factors include if the institution owns the property where the incident occurred, if the institution monitors where the incident occurred, or if the institution sponsored/funded an event where the incident took place. Basically, anywhere off campus is a grey area in terms of whether or not an institution has an obligation to investigate the Title IX violation, except if the incident occurred out of the country (regardless if a student were studying abroad or doing an "alternative spring break" volunteer program). Previously, an institution was required to investigate Title IX violations if there were continuing effects on the victim as a result of the incident, such as seeing the accused on campus, mental health problems conflicting with their ability to do coursework, etc.
Institutions would be required to respond to Title IX violations that meet the proposed change in definition of sexual assault, in a way that is "deliberately indifferent", or "clearly unreasonable in light of the known circumstances." This basically enforces what is mentioned in the second point above. The proposed changes make a very clear distinction between reports and "formal complaints", which are signed by the alleged victim or the Title IX coordinator the violation was reported to. Again, only if a "formal complaint" was filed is an institution required to formally investigate an incident. If a report was made, then the institution is still required to respond, but not necessarily complete an investigation. Instead, they are required to use "supportive measure" regulations that are non-disciplinary and free for the students. This could be counseling, mutual restrictions on contact between parties, leaves of absence, and so on.
Institutions would be required to conduct investigations that are similar to formal judicial proceeding. This would include live hearings where both parties, through advisors, lawyers, etc, would have the option to cross-examine one another, and if one of the parties don't have an advisor, the institution would be required to provide one. Sound familiar? This is supposed to ensure fair treatment for all parties, however it draws concern due to an individual's vulnerability that is apparent in many, if not all, Title IX investigations. This would also require that the Title IX coordinator, investigator, and decision maker(s) are different people, which is different form what is currently allowed.
In investigations, an institution would be required to use a "more likely than not" standard, as well as a "clear and convincing evidence" standard. Institutions could only use the "more likely than not" standard if that is what is used to judge non-sexual harassment campus disciplinary code violations that carry the same maximum penalty. Also, this would require that students are judged at the same standard as employees and faculty.
Safe harbors would apply to institutional responses that are not "deliberately indifference" and not Title IX violations. Safe harbors would apply whenever an institution follows the procedures and requirements expected of them when investigating a formal complaint or responding to a report. Basically, all this is saying is that the U.S. Department of Education won't second guess an institution's decision about a case as long as they follow procedures and regulations, and institutions won't be assessed monetary damages for Title IX violations.
Possibly the most important point: these proposed regulations only address the bare minimum steps an institution would have to take in order to comply with Title IX, according to the proposed Title IX changes. Institutions could go go above and beyond the regulations, but it isn't required of them. They may investigate a case if no report has been formally made, an incident that happened off campus, etc.
The biggest complaint with these proposed changes is that there needs to be clarity with DeVos's wording. For example, what is the scope of "education program or activity"? Community colleges and universities across the U.S. have been formally responding to the proposed changes, and we have yet to see if there will be a clarified version of these proposed changes. We hope this article has helped you understand the proposed changes!
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