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U.S. Department of Education Rewrites the Rules for Handling Sexual Harassment Accusations

Major Controversial Changes Coming Soon to Federally Funded Institutions

By Lindsay Leible Combs, Attorney
May 22, 2020

Significant changes to Title IX – the federal civil rights law providing protections and due process for those involved in allegations of sexual harassment and sexual assault at institutions which receive federal financial assistance, including colleges and universities – will go into effect August 14, 2020. The controversial new provisions, formally announced by Education Secretary Betsy DeVos, are causing quite the uproar amongst activist groups and politicians alike who claim that the new rules unfairly favor the accused over the alleged victim. Conversely, proponents argue that the changes make the process fairer for both parties.

Key Changes
  • Force of Law. The new regulations will have the force of law behind them unlike the previous guidance under Title IX pursuant to the previous administration’s “Dear Colleague” letters.
  • Definition of Sexual Harassment. The new regulations alter the definition of sexual harassment under prior Title IX guidance from conduct that is “severe, persistent, or pervasive” to conduct that a reasonable person would find “so severe, pervasive and objectively offensive” that it denies a person equal educational access. The new regulation further clarifies that misconduct under the institution’s Title IX processes includes dating violence, domestic violence, stalking as defined by the Violence Against Women Act, and sexual assault defined by the Clery Act.
  • Procedural Requirements. Federally funded institutions must:
    • Provide live hearings and allow each party’s advisor to question evidence and cross-examine witnesses.
    • Presume the accused are innocent prior to the investigation or any decision-making.
    • Have the option to use either a “preponderance of evidence” standard (the lowest standard of proof) or the “clear and convincing standard” (a higher burden of proof).
    • Investigate complaints of misconduct that occur within an education program, which would include off-campus housing for sororities and fraternities or at events that are part of a university program. Additionally, the regulations allow a college to “address sexual harassment affecting its students or employees that falls outside Title IX’s jurisdiction in any manner the school chooses.”
  • Appeals Process. Under the new Title IX regulations, it will be mandatory for institutions to provide an appeals process as part of its grievance procedures to ensure both parties have access to appeal decisions on the basis of procedural mistakes, conflicts of interest, or bias by any university staff or advisors involved in the proceedings.
What Proponents Are Saying

Proponents of the new regulations argue they necessarily secure due process for students on both sides of the sexual misconduct claim. The consequences of being found in violation of Title IX are real and far-reaching, including potential school suspension and expulsion from degree programs, which may impact future enrollment or job opportunities for many years to come. "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."

Kenneth L. Marcus, assistant secretary of the Office for Civil Rights said, "The new Title IX regulation is a game-changer. It establishes that schools and colleges must take sexual harassment seriously, while also ensuring a fair process for everyone involved. It marks the end of the false dichotomy of either protecting survivors, while ignoring due process, or protecting the accused, while disregarding sexual misconduct.”

What Critics Are Saying

Critics of the new provisions, however, argue the new live hearing and cross-examination requirements may re-traumatize victims and deter them from reporting sexual harassment and assault. Fatima Goss Graves, president and CEO of the National Women's Law Center explained, "if this rule goes into effect, survivors will be denied their civil rights and will get the message loud and clear that there is no point in reporting assault."

Louise Melling, ACLU deputy legal director, said, “Title IX was adopted to ensure that no student, whether in grade school, high school, or university, would be denied or limited educational opportunities because of sex. The DeVos rule thwarts that aim by dramatically reducing schools’ obligations to address sexual harassment and assault. By adopting a rule that subjects sexual harassment to different standards than other forms of harassment, the Trump administration is doing exactly what Title IX prohibits — discriminating on the basis of sex.”

Joe Biden, former vice president and presumptive Democratic nominee for president in the 2020 election, issued a statement saying:

“Simply put: this new rule gives colleges a green light to ignore sexual violence and strip survivors of their rights. It lets colleges off the hook for protecting students, by permitting them to choose to investigate only more extreme acts of violence and harassment and requiring them to investigate in a way that dissuades survivors from coming forward…
 
It’s wrong. And, it will be put to a quick end in January 2021, because as President, I’ll be right where I always have been throughout my career — on the side of survivors, who deserve to have their voices heard, their claims taken seriously and investigated, and their rights upheld.”

New Changes Go into Effect August 14, 2020

Whether you are a victim, the accused, or college/university personnel involved in a disciplinary matter pursuant to Title IX, it is critically important that everyone involved understands students’ rights and the implications that the new regulations will have on the proceedings. The better equipped you are going into the process, the better prepared you will be to navigate the quickly evolving Title IX arena. It is for you to decide whether you believe these new rules create a more just, fair process for investigating claims of sexual misconduct or, instead, favor the accused over the accuser. However, regardless of which side of the argument you take, these regulations will effectively be the law as of August 14, 2020, and you should be well-versed and prepared to handle the ramifications.

Lindsay Leible Combs is an associate at Carmody MacDonald P.C. in St. Louis. She concentrates her practice in the area of general civil litigation, including Title IX matters. Lindsay can be reached at ltl@carmodymacdonald.com or 314-854-8664.

This column is for informational purposes only. Nothing herein should be considered legal advice or as creating an attorney-client relationship. The choice of a lawyer is an important decision and should not be based solely on advertisements. Read our full Legal Disclosure here.
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