The U.S. Department of Education called Secretary Betsy DeVos’ new Title IX rules for college campus sexual misconduct a “historic action” that will “strengthen Title IX protections” for survivors of sexual abuse. That’s simply not true.
After a process that took over two years, last week the department finalized new Title IX rules relating to sexual misconduct at colleges and universities. Title IX prohibits discrimination on the basis of sex in higher education, including sexual misconduct.
The new rules, which increase protections for abusers at the expense of survivors, are the final step in the Trump administration’s rollback of the Obama-era protections for campus victims of sexual assault. DeVos developed the policies after meeting in 2017 with groups like the National Coalition for Men, which defended Brett Kavanaugh when he was accused of sexual misconduct during his U.S. Supreme Court confirmation hearings.
First, the new regulations narrow the definition of what is considered sexual harassment for Title IX purposes. They now define sexual harassment covered under Title IX as “unwelcome conduct that is so severe, pervasive, and objectively offensive that it denies its victims equal access to education.” This is narrower than the previous definition and makes it more difficult for survivors to have claims investigated. Under Obama, sexual harassment was defined in a broader fashion as “unwelcome conduct of a sexual nature.” Even repeated—pervasive—instances of unwelcome conduct wouldn’t be actionable unless the conduct was also “severe” and “objectively offensive.”
Next, the rules change how schools can choose to assess whether sexual misconduct occurred. Previously, sexual misconduct could be proven by a “preponderance of the evidence.” That’s an evidentiary standard describing how much evidence is required to determine someone committed the act of which they’re accused. A preponderance of the evidence requires a greater than 50 percent chance that the accusation is true. DeVos’ new Title IX rules mean schools can decide to use a tougher standard of evidence, known as “clear and convincing.” If a school adopts this standard, the accuser will have to prove that an accusation is substantially more likely than not to be true. This will make it much more difficult for a person to prove their claim.
The way in which sexual misconduct hearings are conducted on campus will also change under the new rules. Live hearings will be required where both the survivor and the accused can be cross-examined, much like a trial setting. Under the Obama administration, in-person cross-examination had been discouraged, as it could traumatize survivors or prevent them from coming forward.
Taken together, the higher evidentiary standard and the right to cross-examine a victim in a live hearing make the new procedures much more like a trial than a school disciplinary matter.
Colleges and universities are now also prohibited from using the “single investigator model” where one Title IX official would investigate, adjudicate, and issue discipline. Instead, schools must have three different officials. Title IX coordinators will be responsible for receiving reports, but cannot investigate them. Instead, schools now need a separate investigator to talk to the parties and gather information and an additional person to act as a decision maker.
The new rules also limit what sorts of complaints colleges and universities must now investigate. If a victim is assaulted in off-campus apartments not owned by the university, for example, schools cannot investigate that incident as a Title IX violation, though schools may impose their own rules for non-Title IX investigations. Fraternity houses are covered under Title IX only if they are officially recognized by the school. Sexual misconduct committed while the victim and accuser are studying abroad can also no longer be investigated under Title IX.
Then there’s the new distinction between formal and informal complaints. A formal complaint only occurs when someone files “a document that initiates a grievance process against a respondent alleging Title IX sexual harassment,” and gives it to the school’s designated Title IX coordinator. If the Title IX coordinator receives “informal complaints” that don’t meet that definition, even multiple complaints about the same person, they are not required to investigate.
The new regulations don’t just limit what types of complaints will be investigated. They also decrease the number of people required to report suspected misconduct. Previously, “mandated reporters” under Title IX included coaches, athletic directors, other sports team personnel, residential assistants, and faculty. The new Title IX rules let schools determine which personnel must report sexual harassment. Should an employee the school has not mandated as a reporter bring forth a complaint, the school doesn’t have to investigate it under its Title IX process.
Coaches are no longer mandated reporters, a particularly egregious exclusion given the number of recent college sexual abuse scandals in which athletic department employees overlooked sexual assault, such as Michigan State University’s gymnastics program and its team doctor, Larry Nassar. Just last week, Ohio State University announced a $41 million settlement with 162 men who say they were abused by the wrestling team’s doctor over many years.
There’s no longer a specific timeframe in which schools must conclude the grievance process. The new rule only requires it be addressed in a “reasonably prompt” fashion. DeVos’ education department says that allowing institutions to set their own time frames “increases the likelihood that recipients will meet the time frames they have designated and thereby more often meet the expectations of students and employees as to how long a recipient’s grievance process will take.”
The rules don’t provide any recourse for the survivor if a school fails to meet its own time frame.
Schools are required to fully implement the new rules by August 14, at a time when colleges and universities are grappling with coronavirus concerns and making decisions about whether to hold in-person instruction in the fall. Schools had asked the department to delay issuing the rules, but the department declined, with DeVos saying “civil rights really can’t wait.”
But the new regulations aren’t about civil rights. They’re about drastically limiting what types of complaints a school must hear and creating a far more adversarial process for survivors of abuse.