The U.S. Department of Education is making some changes to the rules of Title IX, the civil rights law that prohibits discrimination on the basis of gender and has particular relevance to sexual violence on college campuses. The new rules will change how universities litigate disputes related to sexual assault.
In June of 1972, then-President Richard Nixon signed Title IX, an amendment to the Civil Rights Act of 1964, into law as part of the Education Amendments of 1972. The law prohibits gender-based discrimination in any federally funded educational institution. The Department of Education is responsible for implementing and regulating Title IX.
In the early years of its implementation, Title IX expanded equality of opportunity for women in education and school athletics. Women now earn more degrees than men in the U.S. and women continue to set records for participation in college athletics each year.
“Prior to 2011, if you…said, tell me about Title IX, people would say it’s about equity in sports,” Dr. Dawn Wiese, a former vice president of student affairs at Washington and Lee University told The College Post. “That all changed when the Department of Education at that time said ‘we want to address broader issues of equity under Title 9’, and that opens this whole area of looking at sexual misconduct and how it’s adjudicated on college campuses.”
In 2011, under the Obama administration, Title IX regulation entered a new chapter when the Department of Education’s Office of Civil Rights began requiring institutions to take immediate action to eliminate, prevent, and address any form of sexual harassment, including sexual violence, should the institution become aware of any such student-on-student harassment. The Education Department implemented those rules on the basis that sexual harassment is a form of discrimination.
The 2011 rules changes require administrators to allow students to speak to law enforcement, inform students reporting an incident of their options, and conclude investigations in a timely manner by a “preponderance of evidence” standard, meaning administrators must only conclude an incident is more likely than not to have occurred to take action.
Further, the rules empower the Office of Civil Rights to withdraw federal funding from noncompliant institutions or refer cases from noncompliant institutions to the Justice Department for litigation.
Now, with Education Secretary Betsy DeVos at the helm of the Department of Education, Title IX rules are set to change again and could substantially change the way universities litigate sexual harassment complaints. DeVos initially proposed the new rules in November of 2018, and schools are set to begin implementing them in the coming weeks.
“It is our goal with this proposed rule to ensure that Title IX grievance proceedings become more transparent, consistent, and reliable in their processes and outcomes,” DeVos said in a statement upon proposing the new rules. “Far too many students have been forced to go to court to ensure their rights are protected because the Department has not set out legally binding rules that hold schools accountable.”
The new rules will define dating violence, domestic abuse, and stalking as forms of gender discrimination that universities must address and will also make it easier for religiously affiliated schools to qualify for an exemption from Title IX.
Joseph Vincent, a consultant for the Association of Title IX Administrators, told The College Post he believes “70 to 80 percent” of the changes are “good and welcome,” but cautioned that some of the new rules, could unfairly tilt the litigation process in favor of the accused.
“There are some provisions related to producing all evidence at the request of a party which is not the hallmark of any resolution, procedure or investigation,” Vincent said. “When you have someone under investigation if they walk into your office and say, ‘hey, I want to see all the evidence you’ve collected so far,’ there’s no investigation in any form anywhere in the country that would provide that.”
Other rule changes will lift a ban on informal mediation, which would allow students to reach a settlement outside of the regular process of investigation and adjudication. Additionally, the changes will require institutions to allow the accused to cross-examine their alleged victims.
“There are a couple of pieces that are really hotly debated,” Nellie Drew, the director of the Center for the Advancement of Sport at the University of Buffalo told The College Post. “One of which is the extent to which someone who is accused of violating Title IX is provided with very specific allegations as to what the violations were, and the opportunity to have live hearings and cross-examination of witnesses, which…is likely to have a chilling effect upon reporting.”
While DeVos argues the new rules for litigation regarding cases of sexual misconduct are an effort to ensure due process for the accused and make the litigation process more transparent, others, like Vincent are concerned live hearings and cross-examination will make student victims of sexual harassment less likely to come forward.
Vincent argues putting victims in a setting live hearings where they are forced to face their alleged abuser and are subject to cross-examination can be a traumatic experience and that while such an arrangement may be typical in criminal or civil court, it’s not appropriate in the setting of an institutional resolution.
“Most of us in institutional resolutions like this…are not comfortable with that setup at all,” Vincent said. “Sexual violence disproportionately affects underrepresented student populations…often with fewer resources and less support. To put them into a quasi-courtroom type situation where they have to answer…very antagonistic…cross-examination questions delivered by a trained attorney is not what our institutional resolutions are designed for.”
While the new Title IX rules are sure to change how colleges and universities handle sexual harassment complaints, they could also prove to be a major point of contention for lawmakers on Capitol Hill later this year.
Democratic senators like Patty Murray of Washington are already expressing concern over the cross-examination requirement in Devos’ new rules as the Senate enters negotiations to reauthorize the Higher Education Act which details how the federal government allocates resources for student loans and financial aid among other things.