Education Secretary Betsy Devos issued final rules, which will take effect on August 14, 2020, for how colleges and K-12 schools must address allegations of sexual misconduct. The new regulation bolsters due process procedural protections of the accused, narrows the definition of sexual harassment, and limits the complaints that schools must investigate only to those that were filed through a formal process and brought to the attention of officials authorized to take action.
For the first time, students will be able to cross-examine through their representatives during hearings. The Department of Education website states that the new policies “hold schools accountable for failure to respond equitably and promptly to sexual misconduct incidents and ensures a more reliable adjudication process that is fair to all students.”
Notable provisions of the new Title IX regulation include:
- Definition of sexual harassment is narrowed. Under the new regulation, sexual harassment includes “unwelcomed conduct that is so severe, pervasive, and objectively offensive” that it denies the victim access to the school’s education program. Under the previous guidance the definition of sexual harassment was less specific including behavior that “interferes with or limits” a student’s access to the school. However, the new rules expand sexual harassment to include sexual assault, dating violence, domestic violence, and stalking, as unlawful discrimination on the basis of sex;
- Due process protections. The accused will have a presumption of innocence throughout the disciplinary process and will have the right to be provided written notice of all allegations against him to challenge. Both the accused and accuser have the right to an advisor/attorney. The new regulations require universities to hold live hearings during which the alleged victim and accused perpetrator can be cross-examined to challenge their credibility. However, the victim is shielded from having to come-face-to-face with the accused during a hearing and from answering questions posed by the accused;
- Schools are required to offer victims supportive measures, such as class or dorm reassignments or no-contact orders;
- Colleges are responsible for off-campus sexual harassment at houses owned or under the control of school-sanctioned fraternities and sororities. Colleges have the discretion to investigate off-campus allegations outside the school’s “programs or activities.” The previous guidance provided that colleges should investigate any misconduct the school “knows or reasonably should know” about;
- Protection of K-12 students by requiring elementary and secondary schools to respond promptly when any school employee has notice of sexual harassment;
- Schools may select one of two standards of evidence, the preponderance of the evidence standard or the clear and convincing evidence standard, but the standard must be applied evenly to proceedings for all students and employees, including faculty;
- “Rape shield” protections are set in place and ensures victims are not required to divulge any medical, psychological, or similar privileged records;
- Schools are required to offer an equal right of appeal for both parties to a Title IX proceeding; and
- Schools will be held accountable if they acted with “deliberate indifference” toward a student’s complaint and allegation.
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