The U.S. Department of Education on Wednesday issued the long-awaited finalized Title IX rules, an overhaul to the handling of sexual assault and harassment accusations in college campuses and K-12 schools.
Education Secretary Betsy DeVos first announced her intent to revise the Obama administration’s guidelines on Title IX complaints in September 2017, and released a draft of changes almost a year later. The Department said that the original federal guidance encouraged colleges and universities to set up so-called “kangaroo courts,” which unfairly favored the accusers and deprived accused individuals of their basic due process rights.
“Two years ago, I promised to address the scourge of sexual misconduct on our nation’s campuses,” DeVos wrote on Twitter. “The new Title IX regulation delivers on that promise. It treats all students fairly and holds all schools accountable if they fail to protect their students.”
The new federal rules (pdf), which will go into effect Aug. 14, offer more due process protections for the accused than the Obama-era guidelines did. The alleged perpetrators and victims now have the equal right to submit, cross-examine, and challenge all evidence at a live hearing, and they can choose to be represented by a lawyer or adviser to avoid face-to-face questioning. The accused individuals must be presumed innocent until proven guilty.
The new rules allow schools to select from two burden of proof standards when processing Title IX complaints. One is the “preponderance of the evidence” standard, which requires that at least 51 percent of the evidence support the accuser’s version of events. The other is the “clear and convincing” standard, which requires a 75 percent likelihood. The selected standard must be applied evenly to proceedings for all students and employees.
The Obama-era guidelines loosely defined sexual harassment as “unwelcome conduct of a sexual nature.” Under the new guidelines, misconduct must fall under one of three specific categories to become actionable under Title IX. The three categories include “quid pro quo” harassment, defined as school employees implying or offering educational benefits to students in exchange for sexual favors. The second category is sexual assault, and the third category is sexual harassment, defined by the U.S. Supreme Court in Title IX cases as any unwelcome sex-based conduct “so severe, pervasive, and objectively offensive” that it “denies a person equal access to the school’s education program or activity.”
“Students shouldn’t have to relinquish their basic rights when they step foot on a college campus” said Samantha Harris, a senior fellow of FIRE, a watchdog group for campus free speech and due process. “Sexual misconduct is a gravely serious offense for which the punishment must be substantial. The department’s new regulations require schools to provide students with a fundamentally fair process before imposing these life-altering consequences.”