Summary

 

The long-awaited new Title IX regulations were released today by the U.S. Department of Education, codifying for the first time sexual assault grievance proceedings.

The new rules narrow the definition of sexual harassment, and classify domestic violence, dating violence and stalking as forms of gender discrimination that institutions must address under Title IX.

Colleges and universities will be required to hold live hearings, where student accusers and the accused can be cross-examined.

Institutions are responsible for investigating only incidents that occur in their programs or activities, and only complaints that are filed through a formal process to the proper officials.

Institutions can also choose which evidentiary standard to use to find students responsible for misconduct.

This includes responsibility to investigate allegations of off-campus misconduct.

The new rules will take effect on August 14, 2020.

Key Points

  • The new rules replace the informal Obama-era guidance outlined in a 2011 “Dear Colleague” letter and a supplemental document in 2014. Those policies defined sexual harassment more broadly and held institutions liable for incidents they “reasonably should” have known about.

  • Education Secretary Betsy DeVos rescinded that guidance in 2017, arguing that subsequent regulations would have the force of law and siding with her fellow critics that the Obama administration’s guidelines skewed in favor of the accusers. Her initial proposal, released in November 2018, met with a flurry of criticism and attracted more than 120,000 public comments.

  • The final regulations address some concerns that were raised by victims’ rights groups. In addition to extending an institution’s responsibility to investigate incidents that take place off campus, it “softens” the initial rules for cross-examination.

  • Students can’t cross-examine each other, and the two parties are permitted to be in separate rooms from each other. Colleges and universities are allowed to host the hearings virtually. A hearing officer must first decide if the questions to  be used during cross-examination are relevant. Questions about a person’s sexual history will not be considered relevant unless they could establish consent or prove that someone else committed the misconduct.

  • Title IX coordinators will be in charge of facilitating the complaint process, and the new rules allow for institutions to appoint more than one person to the position. Those staff members are required to provide students with “supportive measures” even if an accuser does not wish to pursue a formal complaint.

  • Colleges and universities are required to provide accused students with written assurance that they are presumed innocent until the end of the complaint process. Institutions cannot discipline students accused of misconduct until the end of the case, although those students can be removed from campus if they pose a risk.

  • The new rules are expected to be challenged in court.

 

Further reading

Betsy DeVos Completes Sexual Assault Rules, New York Times

Betsy DeVos to issue Title IX rules on campus sexual assault this week, The Washington Post

DeVos releases final Title IX rules, easing colleges’ burdens to investigate sexual assault, Education Dive

Education Department releases final Title IX regulations, Inside Higher Ed

Secretary DeVos Takes Historic Action to Strengthen Title IX Protections for All Students, U.S. Department of Education press release

The 2011 Dear Colleague Letter from the Obama Administration

New Campus Sexual Misconduct Rules Will Tackle Dating Violence, New York Times

Key PointsKey Poin The new rules replace the informal Obama-era guidance outlined in a 2011 “Dear Colleague” letter and a supplemental document in 2014. Those policies defined sexual harassment more broadly and held institutions liable for incidents they “reasonably should” have known about. Key Points

The new rules replace the informal Obama-era guidance outlined in a 2011 “Dear Colleague” letter and a supplemental document in 2014. Those policies defined sexual harassment more broadly and held institutions liable for incidents they “reasonably should” have known about.

Education Secretary Betsy DeVos rescinded that guidance in 2017, arguing that subsequent regulations would have the force of law and siding with her fellow critics that the Obama administration’s guidelines skewed in favor of the accusers. Her initial proposal, released in November 2018, met with a flurry of criticism and attracted more than 120,000 public comments.

The final regulations address some concerns that were raised by victims’ rights groups. In addition to extending an institution’s responsibility to investigate incidents that take place off campus, it “softens” the initial rules for cross-examinati Students can’t cross-examine each other, and the two parties are permitted to be in separate rooms from each other. Colleges and universities are allowed to host the hearings virtually. A hearing officer must first decide if the questions to  be used during cross-examination are relevant. Questions about a person’s sexual history will not be considered relevant unless they could establish consent or prove that someone else committed the misconduct.

Title IX coordinators will be in charge of facilitating the complaint process, and the new rules allow for institutions to appoint more than one person to the position. Those staff members are required to provide students with “supportive measures” even if an accuser does not wish to pursue a formal complaint.

Colleges and universities are required to provide accused students with written assurance that they are presumed innocent until the end of the complaint process. Institutions cannot discipline students accused of misconduct until the end of the case, although those students can be removed from campus if they pose a risk.

The new rules are expected to be challenged in court.

Education Secretary Betsy DeVos rescinded that guidance in 2017, arguing that subsequent regulations would have the force of law and siding with her fellow critics that the Obama administration’s guidelines skewed in favor of the accusers. Her initial proposal, released in November 2018, met with a flurry of criticism and attracted more than 120,000 public comments.

The final regulations address some concerns that were raised by victims’ rights groups. In addition to extending an institution’s responsibility to investigate incidents that take place off campus, it “softens” the initial rules for cross-examination.

Students can’t cross-examine each other, and the two parties are permitted to be in separate rooms from each other. Colleges and universities are allowed to host the hearings virtually. A hearing officer must first decide if the questions to  be used during cross-examination are relevant. Questions about a person’s sexual history will not be considered relevant unless they could establish consent or prove that someone else committed the misconduct.

Title IX coordinators will be in charge of facilitating the complaint process, and the new rules allow for institutions to appoint more than one person to the position. Those staff members are required to provide students with “supportive measures” even if an accuser does not wish to pursue a formal complaint.

Colleges and universities are required to provide accused students with written assurance that they are presumed innocent until the end of the complaint process. Institutions cannot discipline students accused of misconduct until the end of the case, although those students can be removed from campus if they pose a risk.

The new rules are expected to be challenged in court.

The new rules replace the informal Obama-era guidance outlined in a 2011 “Dear Colleague” letter and a supplemental document in 2014. Those policies defined sexual harassment more broadly and held institutions liable for incidents they “reasonably should” have known about.

Education Secretary Betsy DeVos rescinded that guidance in 2017, arguing that subsequent regulations would have the force of law and siding with her fellow critics that the Obama administration’s guidelines skewed in favor of the accusers. Her initial proposal, released in November 2018, met with a flurry of criticism and attracted more than 120,000 public comments.

The final regulations address some concerns that were raised by victims’ rights groups. In addition to extending an institution’s responsibility to investigate incidents that take place off campus, it “softens” the initial rules for cross-examination.

Students can’t cross-examine each other, and the two parties are permitted to be in separate rooms from each other. Colleges and universities are allowed to host the hearings virtually. A hearing officer must first decide if the questions to  be used during cross-examination are relevant. Questions about a person’s sexual history will not be considered relevant unless they could establish consent or prove that someone else committed the misconduct.

Title IX coordinators will be in charge of facilitating the complaint process, and the new rules allow for institutions to appoint more than one person to the position. Those staff members are required to provide students with “supportive measures” even if an accuser does not wish to pursue a formal complaint.

Colleges and universities are required to provide accused students with written assurance that they are presumed innocent until the end of the complaint process. Institutions cannot discipline students accused of misconduct until the end of the case, although those students can be removed from campus if they pose a risk.

The new rules are expected to be challenged in court.

At Harvard, faculty may supplement with a “qualitative assessment of student learning” in my.harvard.

Still largely to be determined: how these changes will affect some graduate school admissions, admissions to business, law and medical schools, and credit transfers. 

Harvard Medical School will accept pass/fail grading for spring 2020 coursework, although letter grades would be preferred if the option for such grades is offered, to assess pre-requisites.

Cornell Law implemented mandatory pass/fail for its students, alongside the law schools at Columbia, Stanford, UC Berkeley and Boston College.

These policies are expected to have the greatest impact on credit transfers. 

Business schools are pushing 

Pittsburgh

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Los Angeles

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New Hampshire

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