The U.S. Department of Education finalized its Title IX regulations, which dictate how campuses must process sexual assault and harassment reports. Universities will have to abide by these new regulations starting August 14.
These new regulations were first introduced in November 2018. Since then, the department’s Office for Civil Rights reviewed more than 124,000 public comments before finalizing the regulations. While the Obama administration issued Title IX guidance, this is the first change to Title IX enforcement that includes required regulations, instead of suggestions.
Some criticism of the new regulations is that they favor perpetrators of violence and they make the justice process more difficult for survivors.
Here are the five biggest changes.
Universities will now be required to allow verbal cross-examination of the complaining and responding parties, as well as any witnesses, during a live hearing.
In past policy, written questions and answers between the respondent (student accused of sexual misconduct) and complainant (student who reported misconduct) were allowed.
Now, this information-gathering period will more closely resemble a court-like proceeding, where party advisors have the right to separately question the involved students during a public hearing.
The same standard of proof for all cases
Universities will be required to pick either a “preponderance of the evidence” or a “clear and convincing” standard as a burden of proof. A preponderance of evidence is applied when at least 51 percent of evidence supports the complainant’s outcome. Clear and convincing is a higher standard of evidence that requires the complainant to prove that a particular fact is substantially more likely than not to be true. The same standard will apply to all cases.
Stalking, domestic violence and dating violence will now be officially considered examples of sexual harassment, but not always.
The definition of sexual harassment will be more narrow than it previously was. It is now defined as “any unwelcome conduct that a reasonable person would find so severe, pervasive and objectively offensive that it denies a person equal educational access.”
Stalking, domestic violence and dating violence reports do not always meet this definition.
Universities will not be required to respond to off-campus reports
Universities will not be required to respond to off-campus reports of sexual harassment, unless it occurs at an officially recognized student or institution organization, including fraternity and sorority housing.
Universities will also not be required to respond to sexual harassment complaints that happen outside of the U.S. This includes any harassment or assault that happens in American education programs abroad. However, universities are still allowed to apply misconduct policies for programs abroad if they so choose.
Colleges must hire a three-person investigation team
Colleges must adopt a new three-person team investigation model that includes a Title IX coordinator who receives sexual misconduct reports, an investigator who gathers facts and interview parties and witnesses, and a decision-maker who determines the outcome.
If a Title IX coordinator receives multiple informal complaints of harassment against a single respondent, they will not be required to begin a formal complaint process.
Colleges must train all personnel involved in the Title IX process following the new regulations and post their training materials online.
Processes may be held online and a new timeline
Title IX processes may be held in an online format. Within 10 days before a response is required, colleges must provide evidence related to allegations to parties and advisers, and groups involved are no longer banned from speaking about the allegations.
Colleges no longer have a set time frame for carrying out Title IX processes, but must complete their work in “reasonably prompt” periods.
“This is going to be a shitstorm,” said Ibrahim Zobi, a former resident advisor. “I think it’s lazy. I think considering the amount of money that is poured into schools by students, the least universities could do is make sure their students feel and are safe.”
As a former resident advisor, he said he has seen his students go through the Title IX process. One case that he witnessed involved multiple of his residents being sexually assaulted by a single perpetrator from a fraternity. The fraternity eventually disbanded, but the perpetrator faced no legal consequences.
Zobi said that the U.S. Department of Education should be working to improve and strengthen Title IX regulations, instead of making them worse so that events like what he described do not happen again.