“the federal law that prohibits sex-based discrimination in education is getting a radical overhaul that will gut critical due process protections for students accused of sexual misconduct.
Education Secretary Miguel Cardona touted the new proposals as necessary revisions to Trump-era rules that reasserted the need for colleges and universities to treat both parties to a sexual misconduct dispute fairly and equally. The Biden administration has apparently embraced the idea—one promoted by many progressive victims’ advocacy groups—that the rules propagated by previous Education Secretary Betsy DeVos made it too difficult to file sexual misconduct claims; Cardona’s proposals would substantially revert Title IX compliance to the Obama-era standards, under which hundreds of students allege that they were wrongfully expelled from college following adjudication procedures that were manifestly unfair.”
“it won’t be easy for the new administration to undo the reforms, which went through a multiyear review as required by the Administrative Procedures Act. Going back to the previous Title IX standards would require an equally involved and time-consuming process.”
“The new rules aim to protect victims of sexual misconduct while also establishing fairer procedures for the accused. The department believes the new rules will “balance the scales of justice on campuses across America,” a Department of Education spokesperson said during today’s press briefing.”
…
“Most notably, the government has abolished the single-investigator model, which previously permitted a sole university official to investigate an accusation of misconduct, decide which evidence to consider, and produce a report recommending an outcome. Under the new rules, the final decision maker must be a different person than the investigator, and a finding of responsibility can only be rendered after a hearing in which a representative for the accused is able to pose questions to the accuser—i.e., cross-examination.
Importantly, the new rules narrow the scope of actionable sexual harassment to exclude conduct that ought to be protected under the First Amendment. Obama-era guidance had defined sexual harassment as “any unwelcome conduct of a sexual nature.” The new rules keep this definition but add that the conduct must be offensive to a reasonable person, severe, and pervasive. In practice, this should mean that schools will no longer initiate Title IX investigations that impugn free speech.”
“The new rules will also end the pernicious practice of universities initiating Title IX investigations in cases where the alleged victims are not interested in this course of action.. a formal complaint that results in adjudication can only be initiated by the victim or their parents/legal guardians.”
“The new regulations address two broad categories of institutional obligations. The first is jurisdictional: When does a university have a responsibility, under Title IX, to take action? The second is substantive: When a university does take action, what must it do?
In terms of when a university must take action, the new regulations use a speech-protective definition of sexual harassment that mirrors the definition established by the Supreme Court in Davis v. Monroe County Board of Education (1999). Under the new rules, hostile environment sexual harassment is defined as “unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.” This is a critically important provision because the previous administration had employed an overly broad definition—”any unwelcome conduct of a sexual nature”—that led students and faculty to be punished for speech and expression protected by the First Amendment. The regulations also make clear that Title IX prohibits physical sexual misconduct such as sexual assault, dating violence, domestic violence, and stalking.
The new regulations also make clear that universities must respond to any sexual harassment that takes place “in the school’s education program or activity.” This includes not only incidents that occur on school grounds, but also incidents that occur in contexts where the university has “substantial control,” including in buildings owned or controlled by recognized student organizations (such as fraternity houses.)
The regulations also contain a lot of information about how schools must conduct their Title IX grievance procedures. While Title IX has long required a “prompt and equitable” process, colleges’ handling of these cases in recent years has been anything but equitable. Ever since the 2011 Title IX Dear Colleague letter—which eliminated important procedural protections for the accused and ushered in an era of aggressive federal investigations that led schools to abandon even more due process protections—students have been forced to defend themselves in biased, inquisitorial proceedings, often with little to no information about what they allegedly did wrong.”