Today, Department of Education Secretary Betsy DeVos released final regulations that weaken Title IX protections for sexual violence survivors in schools. Title IX of the Education Amendments of 1972 prohibits sex-based discrimination and retaliation in education. Title IX applies to any education program or activity receiving federal financial assistance, and protects students and school employees at educational institutions at all levels, from kindergarten through postgraduate schools. Title IX protects students from sexual harassment or sexual assaults. Schools have an obligation under Title IX to ensure that survivors of sexual assault or harassment can continue their education safely and without harassment.
The new regulations are part of a contentious overhaul to the ways in which schools handle sexual assault and misconduct that Secretary DeVos launched in 2017.
The regulations make significant changes to the Obama administration guidelines, including a narrower definition of sexual misconduct and the right for advisors on all sides to cross-examine survivors and perpetrators, which has the potential to be extremely traumatizing to survivors. The rules also limit the complaints that schools are obligated to investigate to those filed through a formal process and brought to the attention of a limited number of officials on campus with the authority to take corrective action. Additionally, schools are only responsible for investigating episodes said to have occurred within their programs and activities, excluding off-campus incidents of assault, even if the assailant and survivor live in the same dorm or attend the same classes. Schools are barred from taking action against assailants until the formal process is over, which means the survivors will have a harder time obtaining no-contact orders and other interim measures that help keep them safe in school.
Although the Obama administration guidelines recommended that schools use a “preponderance of evidence” to find students responsible for misconduct, the new regulations allow schools to choose an evidentiary standard, regardless of what the school uses for other disciplinary matters– “preponderance of evidence” or “clear and convincing evidence,” the latter being much more onerous.
The regulations go into effect on August 14, 2020. If you have experienced sexual harassment or violence at school, or have questions about the way your school is responding to the new regulations, contact us today. Our team helps students determine their rights under the applicable laws, obtain relief, and hold schools accountable.