What Colleges Need to Know About the New Title IX Rules

Chronicle photo by Julia Schmalz

The U.S. Department of Education on Wednesday announced sweeping changes in how colleges must handle sexual-assault and sexual-harassment complaints, bolstering protections for accused students and employees.

The long-awaited changes in the enforcement of Title IX, the federal gender-equity law, will require colleges to hold live hearings and allow cross-examination when adjudicating sexual-misconduct complaints. The new regulations also will narrow the scope of complaints that colleges are required to investigate. In other words, according to the federal government, Title IX covers only sexual harassment that meets its new definition: “unwelcome conduct” that is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education.”

The changes (summarized here and here) will take effect on August 14.

College officials have been anticipating the new rules for more than a year. Many fear that the mandates are too burdensome and could dissuade sexual-assault victims from coming forward. Victim advocates worry that less oversight from the federal government could squander campuses’ progress in curbing sexual violence. But due-process supporters, who say Obama-era federal guidelines unfairly railroaded accused students, hailed the new rules when they were proposed, in 2018.

The final rules were released at a chaotic time. The American Council on Education in March asked Education Secretary Betsy DeVos to delay the regulations until the Covid-19 pandemic had passed. Eighteen states’ attorneys general and several survivor-advocacy groups echoed that call.

“At a time when institutional resources already are stretched thin, colleges and universities should not be asked to divert precious resources away from more critical efforts in order to implement regulations unrelated to this extraordinary crisis,” ACE said.

In a news conference on Wednesday, DeVos said she didn’t want to delay the rules’ release because Title IX cases are being decided even in the midst of the pandemic. “Civil rights really can’t wait,” she said. “It’s not a surprise to institutions that it was coming.”

Because colleges have moved classes online due to Covid-19, DeVos said, “it’s actually an ideal time for campus administrators to begin implementing this when students are not on college campuses.”

In addition to navigating the financial and other uncertainties brought on by the pandemic, administrators now must turn their attention to reshaping campus sexual-misconduct policies.

ACE called the August 14 mandate to comply with the new regulations “cruel” and “counterproductive” on Wednesday. “Choosing this moment to impose the most complex and challenging regulations the agency has ever issued reflects appallingly poor judgment,” ACE said.

The new Title IX rules include several notable provisions:

• Colleges can raise the bar for what constitutes a violation of campus policy and, therefore, merits punishment. For years, the federal government told institutions to use a preponderance-of-evidence standard, or “more likely than not,” to determine whether a sexual assault had occurred. The new regulations permit colleges to use “clear and convincing,” a standard that is harder to reach.

• Colleges no longer have to designate most employees as “mandatory reporters.” Typically, mandatory-reporting policies require faculty and staff members to tell the campus Title IX office when they hear about potential allegations.

• Colleges can no longer use the common single-investigator model, in which an investigator writes a report and recommends a finding, but no hearing takes place.

• The narrower definition of harassment also explicitly covers domestic violence, dating violence, and stalking, a change from the proposed regulations.

• Colleges must investigate off-campus sexual misconduct that occurs in educational activities, such as college-owned buildings and college-sponsored trips, but not in off-campus apartments or during study abroad. Fraternity houses are considered educational programs if they are recognized by the institution, according to the department.

• In hearings, students can never cross-examine each other personally. Colleges must ensure that both parties have an adviser who will pose questions on their behalf. The adviser doesn’t need to be a lawyer. Still, campus officials have worried that they would have to hire lawyers for students who couldn’t afford them.

• Institutions may hold Title IX hearings via videoconference. Given that campuses are operating mostly online, many administrators have considered delaying hearings until after the pandemic is over.

The regulations cap a decade of sharp change in how colleges handle complaints of sexual harassment and assault. As student movements galvanized support for victims, the Obama administration made the issue a priority starting in 2011, when the Education Department’s Office for Civil Rights issued a “Dear Colleague” letter to higher-education institutions with a clear message: The federal government would start holding colleges accountable for mishandling complaints.

The office, known as OCR, opened investigations into hundreds of colleges as they hastened to create new infrastructure for dealing with complaints. Some institutions have since hired a dozen or more people to staff their Title IX offices.

But within a couple of years, critics began sounding alarms. In an attempt to take victims’ complaints more seriously, administrators had overstepped, the critics said, suspending or expelling students for sexual contact that occurred when everyone involved was drunk and incapable of clearly remembering what had happened.

Due-process advocacy groups, including Families Advocating for Campus Equality, formed to defend students who said they’d been falsely accused. Prominent law professors joined the chorus calling for fairer processes.

When DeVos took office, in 2017, she listened to those critics. In September of that year, she withdrew the Obama-era guidelines, issued interim guidance, and announced that her department would craft new Title IX regulations.

The Advent of Cross-Examination

Many colleges — mostly public institutions, which must meet constitutional due-process standards — already hold Title IX hearings. But most do not permit cross-examination, in which the accused questions the accuser’s version of events, either directly or through an adviser. Cross-examination was discouraged by the Obama administration because advocates for sexual-assault victims said it could be traumatizing and could dissuade people from coming forward. Critics also worried that cross-examination would offer advantages to students rich enough to hire lawyers.

Public colleges in Kentucky, Michigan, Ohio, and Tennessee have already started cross-examinations in Title IX hearings, due to a 2018 court mandate. The University of Michigan at Ann Arbor, where accused students now directly cross-examine accusers, received roughly the same number of reports of sexual assault and harassment in 2019, the year cross-examination began, as in 2018.

But according to a university report, far fewer students chose to pursue formal Title IX investigations, instead opting for an informal resolution process that doesn’t mete out punishments to accused students.

Under that informal process, the accused student often apologizes to the complainant and completes an educational program, among other consequences, but is not suspended or expelled.

Jeff Nolan, a Title IX lawyer who advises colleges, predicted that many colleges would stay the course. Administrators probably aren’t going to dismiss a sexual-misconduct report just because it doesn’t meet the new federal definition, he said. But Title IX hearings will be a huge resource drain for many institutions at a time when money is already tight, he said.

During the Obama administration, the federal civil-rights office made clear that colleges had an obligation to investigate low-level sexual-misconduct issues before they escalated into something more serious, Nolan said, and that’s no longer the case.

Under the new Title IX rules, if one student alleged that another committed unwanted sexual touching in an off-campus apartment, for instance, the incident would not be considered a Title IX matter if it happened only once and didn’t occur in the context of an educational activity.

Or say a professor made sexual comments to students. Unless the conduct was repeated, directed at a specific person, or prevented students from going to class, it also would not be covered under Title IX, Nolan said. Some such offenses would still be covered, he said, under the Clery Act, the campus-safety law.