Loyola University Chicago School of Law, JD 2021
On May 6, 2020, Secretary Betsy Devos, through the Department of Education (the “Department”) issued the new Title IX regulations (the Final Rule) scheduled to take effect August 14, 2020. The U.S. Department of Education’s Office for Civil Rights (OCR) enforces Title IX of the Education Amendments of 1972. The statute states that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance”, yet it does not define sexual harassment. The Final Rule is heavily contested due to its demanding provisions and implementation period during the pandemic.
The Final Rule
Since 1975, OCR issued numerous guidance documents on how schools should address sexual harassment pursuant to Title IX but these documents were never legally binding. On November 29, 2018, the Department published a notice of proposed rulemaking to amend the Title IX regulations. During the comment period, the Department received more than 124,000 comments. After almost a year and a half of reviewing the public comments on the proposed regulations, the Department issued the Final Rule. The Final Rule aims to impose important legal obligations on schools, requiring a prompt response of reports to sexual harassment, and due process requirements.
Key provisions of the new Title IX regulations address concerns about the narrower definition of sexual harassment which includes sexual assault, dating violence, domestic violence, and stalking. It also provides a legally sound framework on which survivors, the accused, and schools can rely and requires institutions to offer supportive services to survivors, regardless of whether or not the survivor chooses to pursue a formal complaint, such as class or dorm reassignments or no-contact orders. Additionally, the regulations refine the definition of “program or activity” to include off-campus sexual harassment at houses owned or under the control of school-sanctioned fraternities and sororities. In response to comments and concerns about “due process”, the regulations explain all students’ right to written notice of allegations, the right to an advisor, and the right to submit, cross-examine, and challenge evidence at a live hearing. In addition, the Final Rule requires schools to select one of two standards of evidence, the preponderance of the evidence standard or the clear and convincing evidence standard – and to apply the selected standard evenly to proceedings for all students and employees, including faculty. It also give schools flexibility to use technology to conduct these Title IX investigations and hearings remotely amidst the pandemic. The provisions also explain that the federal regulations preempt state law when there is an actual conflict that prevents an institution from complying with both federal and state law
The response to the Final Rule
Organizations are largely divided on their reaction to the Final Rule. Two main topics have generally come from the responses to this Final Rule: First, the controversy over the provision in the Final Rule that requires postsecondary institutions to hold a live hearing and allow cross-examination; and second, the general notion of implementing these new rules in the midst of the COVID-19 pandemic.
For example, President of the University of California system responded by stating that “while some changes, like the inclusion of relationship violence were welcome…subjecting those reporting sexual harassment to direct cross-examination could deter already reluctant and sometimes traumatized complainants from coming forwarding.”
Others, looking at it from the view of the accused, such as the Foundation for Individual Rights in Education (FIRE), commend the Final Rule and the cross-examination provision for being comprehensive and “providing students with a fundamentally fair process before imposing life-altering consequences.”
On June 10, 2020 the American Council on Education (ACE), the umbrella membership group for 1,700 college and university leaders, sent a letter to the office of Secretary Devos requesting regulatory relief stating that colleges and universities cannot implement complex and challenging regulations amidst the pandemic. ACE emphasizes that for many colleges, these regulations will often require “a wholescale redesign of disciplinary processes” which is not feasible while institutions focus on reopening plans. To ensure colleges and Universities are in an economically stable position and can focus on the health of their students, ACE is requesting a delay of the Final Rule effective date to at least mid-December.
In addition, four lawsuits and a motion by have been filed against the Department of Education. The suits push back on not only the deadline of implementation but include challenging the new regulations as in and of themselves discriminatory by creating a separate standard for sex discrimination from standards the Department uses for race and national origin as well as challenging the new regulations as “arbitrary and capricious”. Supporters of the regulations argue that students will be harmed if the new regulations are not implemented by August. On either side of the debate, the tension is high, and students face changing policies and procedures as the effort to address sexual assault on campus in a manner that is compassionate and fair to both parties is implemented.