New Title IX regulations released on May 6 by the U.S. Department of Education could strengthen due process rights for those accused of sexual harassment and violence on campus while also shoring up support for victims. But some victims’ advocates said the requirement to have live disciplinary hearings could keep traumatized victims from coming forward.
Joe Cohn, legislative and policy director at the Foundation for Individual Rights in Education, said practices on college campuses over the #MeToo years have swung too far in favor of the person making a Title IX complaint about a sexual assault, with the accused facing unjust punishment. The new rules work to rebalance the scales of justice and restore Title IX’s original intent.
“It wasn’t really designed to be a secondary, shadow justice system,” Cohn said. “It was supposed to be there to ensure that sex-based discrimination didn’t drive students away from pursuing their educations.”
Congress amended the landmark Civil Rights Act of 1964 to add Title IX in 1972. It bars discrimination based on sex, including sexual harassment and violence, at colleges and K–12 schools. The Education Department, which oversees and enforces Title IX, spent the last year and a half evaluating procedures that some said stripped the accused of their due process rights. Officials combed through more than 124,000 public comments on proposed revisions.
The new regulations, which take effect on Aug. 14, require colleges and universities to presume the accused person is innocent until proven guilty and allow cross-examination of witnesses in live hearings—all stark differences from the department’s previous policies. The rules include a standard definition of “harassment” and an array of supportive services for individuals who come forward with complaints of sexual abuse. They can receive modified class schedules, assignment extensions, housing changes, counseling, escorts, and even institutional enhancements like increased security in an area of campus. The rules also specifically mandate that schools address dating, domestic violence, and stalking. Although the changes affect colleges, universities, and K–12 schools, some measures, like the live hearings, apply only to institutions of higher education.
“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,” said Education Secretary Betsy DeVos.
The Education Department clarified that the requirements have the force of law unlike the Obama administration’s 2011 “Dear Colleague” letter about sexual violence in schools.
“For the first time, the department’s Title IX regulations recognize that sexual harassment, including sexual assault, is unlawful sex discrimination,” Education Department officials said in an overview of the 2,033-page document.
Opponents argued the changes shift too much protection onto the accused, creating barriers to justice for victims.
“I’m feeling really hurt after the announcement today,” Faith Ferber of the youth advocacy group Know Your IX said in September 2017, when the Education Department proposed the changes. “As a survivor, as an activist, as someone who’s been doing this work for almost five years now, it really feels like a slap in the face.”
Ferber said she endured a sexual assault while studying at American University in Washington, D.C., in February 2015. She said inadequate enforcement of the previous guidelines made the new rules necessary.
Know Your IX, along with other opponents of the law, expressed particular concern about the addition of live hearings. They said processes such as mediation or restorative justice could intimidate victims who’ve already suffered harm. And they criticized the level of scrutiny required for schools to declare behavior harassment.
Cohn noted the new Title IX rules more closely mimic the off-campus legal process. Ultimately, the introduction of strong protections for the accused brings more legitimacy to the disciplinary process, a win for everyone.