The proposed changes to Title IX regulations by the Department of Education are slowly working their way towards a finalized form. As they do, some of the details are being leaked, providing a peek at what we can expect when the Department issues their full release, possibly at the beginning of the year.
Here's where we are, now.
Background: Betsy DeVos' Department of Education Wants to Revamp Title IX
We've blogged somewhat extensively about this topic, before. In short, though, Title IX is the federal law that prohibits sex discrimination in education. The law itself is incredibly vague, so the regulations promulgated by the Department of Education – an agency in the federal executive branch – dictate how schools can comply with the law.
Under President Obama, the Department tightened its rules about how schools investigate allegations of sexual misconduct. Advocates for survivors of sexual assault were ecstatic, but the rule changes seemed to go too far: Alleged perpetrators were given little opportunity to defend themselves.
Under President Trump, the Department has sought to roll back those changes. It released new proposed Title IX guidelines over a year ago. Those proposed guidelines were opened up to public comment, where they attracted over 124,000 comments. Most of those comments were critical of the rollback, arguing that it would undo gains made for sexual assault victims, while some argued it put due process back in the system, highlighting the competing interests at the heart of Title IX law.
Since then, the Department has had to read the comments and respond to those deemed “significant” under the requirements of the notice-and-comment process of the Administrative Procedure Act.
It seems that the Department is wrapping up that portion of the rulemaking process, and is getting set to release its finalized set of regulations in the coming weeks.
Leaked Details Beginning to Emerge of Amended Regulations
As we near the release of the new Title IX regulations, details are beginning to be leaked.
The general theme that has been emerging from the leaks has been that the finalized rules are going to look a lot like the regulations that had been proposed and which had been attacked so viciously during the comment period. These would have some significant effects on Title IX investigations and hearings, including:
- The right of the accused to cross-examine their accuser
- Institutional liability only if a school had “actual knowledge” of harassment or assault
- A stricter definition of what amounts to sexual harassment
- A higher standard of proof for misconduct allegations
However, there are signs that the upcoming final rules are going to be different from the earlier proposed rules in one significant way: The final rules are going to give schools jurisdiction over certain off-campus conduct – a jurisdiction that had been limited in the proposed rules.
We'll delve into these leaks in further detail in subsequent blog posts as we await eagerly for the final rules to be released.