The U.S. Department of Education issued its long-awaited final rules for how universities must address allegations of sexual misconduct on Wednesday, the latest in its overhaul of Title IX enforcement.
The new regulations amend the 1972 law that prohibits discrimination on the basis of sex in educational programs — among them is a narrowing of the definition of sexual harassment and permission for cross-examination of accusers and the accused during hearings.
For Secretary of Education Betsy DeVos, the rules emphasize “equitable” treatment and the presumption of innocence, whereas previous Obama-era guidelines “denied students basic due process protections and led to cases frequently being overturned by the courts,” she said in a statement on Wednesday.
“Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault,” DeVos said. “This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process.”
Under the new rules, colleges are required to hold live hearings to cross-examine alleged victims and accused perpetrators to challenge their credibility. Before, these procedures were covered by guidance and recommendations from the Department of Education, but largely left up to individual schools.
At Cornell, some advocates are wary about the changes and the ways they may affect the rights of sexual assault survivors.
“Forcing survivors of sexual violence into ‘live hearings’ with cross-examinations is a blatant attempt to sweep accusations under the rug, bolstering impunity for perpetrators,” Cornell advocacy and education organization Consent Ed wrote in an email to The Sun.
The changes are set to take place Aug. 14, leaving schools — including Cornell — scrambling to parse through the 2,000 pages of released regulations and assess the potential impacts on current policy and procedure, according to Laura Rugless, Director for Institutional Equity and Title IX.
“One issue of serious concern is the Department’s tight timeline for implementation of the new rules,” Rugless wrote in an email to The Sun.
The proposed regulations were published in November 2018, and took nearly a year-and-a-half to be reviewed by the department’s Office for Civil Rights. They went through a formal process where members of the public could comment on the proposal, for the first time since 1997.
“Under any circumstances, implementation of such lengthy regulations in just a few months’ time, when our campus communities are not present to provide input to changes that are of the greatest interest and import to students, faculty and staff, would have been extremely difficult,” Rugless continued. “The circumstances of the current pandemic will make it exponentially more challenging to interpret, communicate and implement the new rules in such a short time.”
In 2018, when the proposed changes were announced, former Title IX Coordinator Chantelle Cleary told The Sun that the regulations “set a floor, and not a ceiling.” For Cornell specifically, she explained, even as the federal definition of sexual harassment changes, Cornell may not have to alter its definition.
Currently, the University follows Policy 6.4, which it uses as the umbrella policy to deal with incidents of bias, discrimination and sexual misconduct.
Even some of the changes may not affect Cornell directly, some advocates spoke against the changes and their potential effects on sexual assault survivors, arguing that the new rules place a higher burden on sexual assault survivors to secure the rights of accused students.
“DeVos further narrowed the definition of sexual harassment, gave universities the right to raise the standard of evidence for local, non-criminal hearings, and stripped the agency of survivors to decide whether or not to proceed with a case,” the Consent Ed board wrote.
The Department of Education maintained that the new regulations protected the rights of all students on multiple fronts, including for appeals, written notices of allegations and advisors for all parties.
“The new Title IX regulation … establishes that schools and colleges must take sexual harassment seriously, while also ensuring a fair process for everyone involved,” said Assistant Secretary Kenneth L. Marcus of the Office for Civil Rights in the department statement. “It marks the end of the false dichotomy of either protecting survivors, while ignoring due process, or protecting the accused, while disregarding sexual misconduct.”
The new guidelines make it more difficult to find the accused guilty during proceedings, giving college Title IX officials the flexibility to use either a “preponderance of the evidence” or “clear and convincing” standard.
Under Obama-era guidelines — which DeVos rescinded in 2017 — officials followed the preponderance of the evidence, which set the burden of proof as only having to find a greater than 50 percent chance that the claim is true. Clear and convincing evidence — permitted under the new guidelines — requires the claim to be “highly and substantially more likely true than untrue,” raising the bar in cases where the difficulty to prove guilt is already high.
Further, the rules limit the scope of schools’ obligations to investigate only cases filed through a formal process and brought to the attention of officials with “the authority to take corrective action.” This would not include residential advisers, for example, but it is unclear how that will affect mandatory reporting under Policy 6.4.
Even more, to find a school legally culpable for mishandling allegations, the school would have to be proven “deliberately indifferent” in carrying out mandates to provide support to victims and investigate complaints fairly. The regulations also legally set sexual assault, dating violence, domestic violence and stalking as unlawful discrimination on the basis of sex.