Controversial new rules
The Department of Education released new Title IX sexual assault regulations, which colleges and universities were required to comply with by August 14th, 2020. The new rules are extremely controversial, especially because they come in the middle of a pandemic that is already straining universities’ resources and required them to make significant changes very quickly, before students returned to campus.
Secretary of Education Betsy DeVos claims that these new rules protect due process for accused students and reporters, through processes including a live hearing, cross-examination of witnesses, and the presumption of innocence for accused students. The rules also allow colleges to choose between the previously required “preponderance of evidence” standard and the higher “clear and convincing” standard of evidence.
What is the real impact of the regulations?
The administration claimed that the new rules will protect both survivors and respondents, but Title IX advocates disagree. Sage Carson, manager of Know Your IX, a national advocacy group for survivors of sexual misconduct, said that the rules demonstrate “no interest in supporting student survivors and their rights” and that this only adds to the challenges students are already facing during the Covid-19 pandemic.
Survivors also took issue with the exclusion of trauma-informed investigation procedures, which take into account how trauma can impact survivors’ interpretation and memory of events. Sara Nesbitt, policy and advocacy organizer for Know Your IX, says that the live hearing and cross-examination process leave survivors vulnerable to “being interrogated.”
Janet Napolitano, president of the University of California system, said that the inclusion of relationship violence in the definition of harassment is a positive change, but that otherwise the Department of Education’s narrower definition of enforceable harassment weakens “fair and just policies.”
Individual colleges and Know Your IX are preparing to challenge the rule in court, likely leading to a delay in their implementation. The American Council on Education, which counts 1,700 college and university leaders as members, said that the Department of Education was “not living in the real world” when it announced the new rules and required an unusually short implementation timeline (August 14th) in the midst of a pandemic, when schools’ resources are already stretched and many are facing hiring freezes.
FIRE (Foundation for Individual Rights in Education) said that the new rules protected due process and were an “important victory.”
Senator Lamar Alexander (R-TN) praised the new rules, while Senator Patty Murray (D-WA) said that they were an attempt to “silence survivors.”
The debate continues
The Department of Education claims the rules protect due process and even the balance of justice between survivors and the accused. Survivors’ advocacy groups, on the other hand, say that these rules make it more difficult to report sexual violence, reduce the responsibility of schools to investigate violations, and favor the accused over the survivor.
Questions about Title IX regulations to discuss on Ohlelo:
- Do you agree with the new Title IX regulations?
- What challenges do you think colleges face in implementing the new regulations?
- Do you think university sexual assault investigations unfairly advantage the survivor or the accused?
- Will we need to wait for Covid to recede before understanding the full impact of the regulations?