Breaking Down The New Title IX Regulations

Amidst a global pandemic, the Department of Education (DOE) has recently issued new Title IX regulations. In a 2,000 page document, Secretary of Education Betsy Devos overruled previous Obama-era guidance on sexual harassment, imposing new legal requirements on how schools conduct their discipline process for sexual assault and harassment. These new regulations include a new, narrower definition of sexual harassment, a cross-examination requirement during the investigation process, a “clear and convicing” standard of proof that raises the bar for what misconduct warrants disciplinary action, a reduction in the responsibilities of colleges for prosecuting potential assaults, among others.  This massively undercuts sexual violence prevention and accountability measures by making it harder to find alleged perpetrators responsible and administering disciplinary action. Because the regulations have the force of law — as opposed to the guidance documents released by the Obama administration — campuses across the country will be forced to revise their sexual harassment policies. While schools such as Harvard have stated their commitment to protecting survivors and maintaining their current disciplinary standards, the DOE’s Title IX revisions may influence colleges to sweep accusations under the rug and undercut sexual violence prevention work, a worrisome possibility as students begin to think about returning to campus in the fall. 

To contextualize these new regulations, they must be read in comparison to the old Obama guidelines. Title IX, passed in 1972, prohibits sex discrimination by schools that receive federal funding. The Obama administration released guidance documents in 2011 to overhaul Title IX — referred to as the “Dear Colleague Letter” — that defined sexual harassment as “unwelcome conduct of a sexual nature” that includes “requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.” It also established that during college investigations, the “preponderance of evidence” standard of proof, the lowest standard, should be used, which bases decisions on the “most convincing evidence presented.” After backlash from lawsuits that argued colleges were “reinforcing” sexual misconduct accusations and unjustly removing students with false accusations, Secretary Devos rescinded the guidance letter in 2017 and replaced it with a new set of regulations that colleges are required to comply with by August 14th.

One worrying regulation that may affect campus disciplinary policies is the new, narrow definition of sexual harassment. Rather than “unwelcome conduct,” the DOE defines harassment as “conduct that a reasonable person would find ‘so severe, pervasive, and objectively offensive that denies a person equal educational access.” This new definition faces backlash from legal scholars as it places the bar extremely high when defining harassment — it must be severe AND pervasive. An assault may very well be severe but not pervasive if it only occurs once. Further, sexist remarks may be pervasive, but not severe. Under the new definition, colleges may not be able to prosecute and expel assaulters unless they can prove the unreasonably high standard that the assault “denies” someone equal access to education, which is extremely worrying. 

The new regulations also require all parties involved in an assault to be cross-examined in a live hearing by a student advisor. The issue that arises with this standard is the potential for survivors to be re-traumatized through intense question and answer sessions. Previously, investigations could occur without such intrusive and public examination methods, but now schools will be required to cross-examine survivors to prosecute their assault. On top of the psychological strain this puts survivors under, these new standards serve no real evidentiary purpose either; they disregard a body of evidence that indicates the psychological effects of sexual misconduct can impact survivors’ memory and interpretation of events, undercutting the intent of the regulations to find “the truth” about what happened. The difficulty of the process may also dissuade survivors from reporting their assaults out of fear of being interrogated by their assaulter’s lawyer or other parties involved in a public setting. 

The DOE’s policies also instill measures to protect those accused of sexual assault by allowing schools to choose the standard of proof they will demand to prosecute assaults. While the DOE does not require schools to adopt a higher burden of proof — a “clear and convincing” rather than the “preponderance of evidence” standard — some Title IX coordinators worry that “the policy is strategically designed to push universities to require clear and convincing evidence in their Title IX proceedings now that the option exists.” Tilting burdens of proof more toward protecting the accused over the survivor will only make preventing sexual assault on campus and holding perpetrators accountable for sexual misconduct more challenging. Further, the DOE has required that the accused are presumed innocent, rather than believing the survivor who came forward. This means colleges will be attempting to prove the survivor is lying, rather than attempting to investigate the matter to bring the accused to justice. This deviates from other aspects of harassment law, especially in the workplace where the definitions of new sexual harassment have been derived, illustrating the DOE’s intention to protect the accused rather than solely equal the playing field. The problem with the “innocent until proven guilty” standard is that it assumes the process of reporting, investigating, and prosecuting is realistic for survivors. Less than ten percent sexual assaults on campus are reported, and only six of every 1000 rapists serve time. Because less than two percent of all reported assaults are false, a high burden of proof for discipline will hurt survivors much more than the small minority of those who are falsely reported. Less than a third of sexual assaults even get reported. Furthermore, most reported sexual assaults do not lead to prosecution; and most prosecuted cases do not lead to findings of guilt. Only about six of every 1000 rapists serve time. On the other side, reporting a sexual assault is notoriously fraught for the victim, who can anticipate being disregarded, shamed, pathologized, and even attacked.

While most institutions have not commented on how they will revise their policies to fit with the new regulations, the narrowing of colleges’ responsibilities to investigate assault may lead to negligence on the part of protecting survivors. For one, colleges are no longer required to investigate assaults that occur outside their Title IX jurisdiction. This means assaults that happen on non-college owned property, such as bars and off-campus residences, even if committed by the college’s student(s), no longer can be adjudicated by the college. This loophole in college jurisdiction is concerning to students who have a substantial amount of their social events in off-campus venues like final clubs, unregistered frat houses, or study abroads where sexual assault can be highly prevalent. Further, the DOE will not find a college in violation of Title IX unless the school had “actual knowledge” of a sexual-harassment allegation and showed “deliberate indifference” — meaning that the college  responded in a way that is “clearly unreasonable in light of the known circumstances.” As substantiated by the Sixth Circut court, to fine a school for deliberate indifference, “The same student-victim suffered some “further incident of actionable sexual harassment.” and  “This further incident of actionable sexual harassment “would not have happened but for the objective unreasonableness (deliberate indifference) of the school’s response” to the original instance of actionable sexual harassment. After an outcry from the legal community about the shockingly high bar to prove negligence, the agency revised its regulations to include extensive obligations the school must fulfill in response to sexual harassment complaints. However, the inclusion of the phrase “deliberate indifference” in the final report, even with the added qualifications, muddles the legal obligations of the school and at best is “misleading and inflammatory,” negating the grounds the DOE will have in prosecuting negligence on the part of colleges to respond and investigate complaints. Thus, colleges will have a much easier time sweeping allegations under the rug than they already do. 

While some of the Title IX regulations the DOE has outlined fix problems with the law, the Trump administration’s sweeping reversal of Obama-era guidance in favor of protecting the accused and reducing the responsibilities of colleges to investigate complaints go too far. Devos has removed essential protections from survivors and given them to their assaulters rather than balancing the scales of justice. The Trump administration’s reaction to the #MeToo movement by elevating the accusers’ rights may have devastating effects on college campuses’ safety and the willingness of survivors to come forward. As the vast majority of sexual assaults are done by serial harassers — or people who commit more than one sexual assault — investigating and removing students from campus is essential to preventing sexual violence on college campuses. By raising the burden of proof, gutting the definition of sexual assault and diminishing the obligation of colleges to investigate complaints properly, the DOE’s new regulations may drastically impact sexual violence prevention on campus. As fall approaches and schools are forced to revise their campus policies to fit with the new regulations, one is again reminded of the power that the federal government and party in power have to determine the safety of our college campuses. 2020 will already be the most important election in our history, and protecting survivors on college campuses is now another reason to add to the list to vote blue.