After more than a year of promising to completely roll back Obama-era guidelines, Secretary of Education, Betsy DeVos, has finally released her long-awaited version of Title IX guidance. And as expected, the proposed guidelines for how schools should handle sexual harassment and assault have caused quite the stir.
Of the most controversial changes, which apply to primary and secondary schools as well as universities, is the narrower definition of sexual harassment. Obama-era guidelines defined sexual harassment as “unwelcome conduct of a sexual nature.” A vague definition that many actions could potentially constitute. DeVos, however, has significantly tapered the scope of misconduct, defining sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it denies a person access to the school's education program or activity.”
The department also proposed new regulations that could possibly change the evidentiary standard for Title IX sexual harassment proceedings. Under Obama's “Dear Colleague” letter, any standard higher than the preponderance of evidence was highly discouraged in proceedings. But the new rules dictate that schools now have the choice between using the “preponderance of evidence standard” and the much higher “clear and convincing” standard in proceedings. The latter is used in criminal proceedings. Schools must also use the same standard for allegations students as they use for those involving employees, including faculty.
Another notable change that was previously reported was reform in regard to school liability. Old guidelines asserted that schools could be held responsible for failing to act if they knew about, or should have reasonably known about an incident of sexual harassment or assault. New guidance reveals that schools must have “actual knowledge” of an incident in order to be responsible for adjudication.
Students must now make a formal complaint through official channels, which means that merely telling a professor, advisor, or fellow student isn't enough. A complaint is only valid if told to a specific group of people. Also, schools can only be responsible for incidents that occur on school property or at college-sponsored events. Off-campus residences, though close to campus, don't count.
Survivors' advocates say that the new rules put students at higher risk of sexual misconduct, while due process says that the new rules restore protections to the campus justice system. Only time will tell how these rules will affect the rates of sexual harassment and assault, reporting, and student safety.
Nationwide Title IX Advisor
The only way to make sure your voice is heard and your rights are upheld is to retain a student defense attorney. For respondents, especially, the assistance of an attorney advisor is invaluable in the Title IX process. National Title IX attorney Joseph D. Lento has the skill, experience, and expertise to help you preserve your entitled rights under Title IX and your school's policy. For a case evaluation or more information about his representation, contact him online or give him a call at 888-535-3686 today.