On November 16, the U.S. Department of Education issued a notice of proposed rulemaking regarding a new set of Title IX regulations with the purpose of reforming how colleges and universities address issues of sexual harassment. Today, the rule was officially published in the Federal Register, allowing for public comment. AGB believes that member institutions should take advantage of the 60-day comment period and weigh in on the proposed language, given the rules’ potential effect on campus policies, practices, and mission. To leave a public comment, click here and then click on the “Comment Now!” button. AGB has issued a statement on the proposed regulations and plans to submit its own comments to the Department, as well as join selected comments submitted by the higher education community. We will continue to update members as the process unfolds.
The monitoring of policies to address sexual harassment on campus falls within the most basic responsibilities of college and university governing boards. Board members recognize that ensuring a safe and supportive learning environment is a fundamental responsibility of all higher education institutions. Over the last several years, our members have made supporting survivors, promoting student mental and physical health, and establishing appropriate disciplinary processes paramount. This new proposal contains a number of significant potential policy changes, and AGB therefore encourages board members to review it with intense scrutiny.
Background
In the wake of a series of scandals involving sexual assault and rape on college campuses, the Obama Administration released a 2011 “Dear Colleague Letter” and a 2014 “Question and Answer on Title IX and Sexual Violence,” providing guidance for how institutions should identify and confront allegations of sexual harassment. Since then, colleges and universities across the country have redoubled their efforts, investing significant time and energy in determining how best to ensure the safety and security of their campus communities. After the change of administrations, in the fall of 2017, Secretary of Education Betsy DeVos rescinded the 2011 and 2014 guidance citing concerns that it unfairly punished the accused by depriving them of due process in campus judicial proceedings. The Department subsequently replaced this guidance with temporary guidelines allowing colleges and universities to use varying standards of evidence, engage in informal mediation to resolve incidents, and set an appeals process that gave either party, or only accused students (as determined by the institution), the right to appeal a ruling.
Proponents argue that the proposed regulations seek to balance the rights of accuser and accused, emphasize fairness in the process, and grant flexibility to institutions in addressing instances of sexual harassment and administering policy. However, survivor organizations and other opponents claim that the new regulations will hold colleges and universities less accountable, stripping sexual assault survivors of important protections and policies that ensure their safety and well-being.
Key Changes to Title IX Proposed by the Department
The proposed regulations contain a number of key changes from Obama-era guidance on Title IX and campus sexual harassment, among them:
New Definition of Sexual Harassment: The Department’s proposal would significantly change the definition of sexual harassment. Under the new proposed regulation, in addition to established federal and case law regarding sexual harassment and quid pro quo sexual harassment, sexual harassment would be defined as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it denies a person access to the school’s education program or activity.” The previous Obama-era guidance defined sexual harassment as “unwelcome conduct of a sexual nature” that included “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”
Evidentiary Standard: The proposed regulations would allow institutions a choice of evidentiary standards that can be used to determine when sexual harassment has occurred. The Obama-era guidance mandated that institutions use “preponderance of the evidence”—a lower standard than “clear and convincing evidence.” The new proposed regulations would only allow institutions to choose either standard as long as it is used for employee allegations of sexual harassment and other student conduct violations with similar disciplinary consequences. Board members should note this change carefully and ensure that their policies are compliant with federal as well as state law, which could be more restrictive.
Due Process, Cross Examination, and Access to Evidence: The proposed regulations mandate that the accused party have “a presumption of innocence” and the right to cross-examination during a live hearing—although the questioning would need to be handled by advisers or attorneys, rather than the accuser or accused. The students could also be physically separated during the examination (i.e. in separate rooms). Obama-era guidance did not allow for cross-examination, believing it would discourage victims from coming forward. However, the Department, citing recent court opinions that require cross examination in Title IX cases, decided to include these new provisions. In addition, both the victim and the accused would be allowed to request evidence from the other party during the course of the investigation.
Expectation to Investigate: Two major changes involve new reporting requirements that affect when institutions must investigate incidents of sexual harassment. Under the new provisions, institutions must have “actual knowledge” of an allegation of sexual harassment. Previously, the Department expected schools to investigate if institutions “reasonably should” have known that sexual harassment occurred. Now, institutions are required to investigate only if the Title IX coordinator or an official with appropriate authority to “institute corrective measures” is aware of the incident, meaning that informing a professor or resident advisor is not alone sufficient. Additionally, colleges and universities must investigate an incident only if it occurred on campus or during an official function that the institution promoted or sponsored.
Mediation, Resolution, and Appeal: Unlike the Obama-era guidance, institutions would be allowed to use mediation as a potential method to reach informal resolutions of cases, at the written consent of both the accuser and the accused. The proposed regulations stipulate that the individual who makes a final determination in a case cannot be the person charged with investigating it, to guard against bias. The regulations would also allow some flexibility to institutions in making schedule changes or housing reassignments as part of resolutions. Both parties would also be allowed the right to appeal decisions of campus judicial proceedings.
AGB and Its Members Take Sexual Harassment Seriously
Dealing appropriately with allegations of sexual harassment is an essential but difficult task, posing potentially significant risks for higher education institutions and their boards. As AGB underlined in its 2015 Updated AGB Advisory Statement on Sexual Misconduct, governing boards have a duty to become and remain informed about sexual harassment affecting their campuses, and to ensure that administrators are giving appropriate consideration to this issue. As fiduciaries, board members are responsible for setting policy that combats sexual violence and harassment in all its forms and must collaborate with institutional leadership so that those policies are effectively carried out. AGB knows that board members genuinely want to get this right, and that they are committed to both promoting and protecting civil rights and to creating an environment that is safe and supportive for the benefit of all students.
Given the importance of this issue, the inherent complexity of many sexual harassment cases, and the diverse legal obligations under which institutions operate, AGB members should study this proposed regulatory language to determine how it will specifically impact policies that enable colleges and universities to best support students on campus.
Questions to Consider:
- Has the board discussed legal developments and national trends regarding Title IX and sexual harassment, particularly at both the state and federal levels?
- Has the board discussed sexual harassment and related issues (as they manifest on campus and in the broader higher education community) with the institution’s administrative leadership and legal counsel?
- Does the board know which administrators are primarily responsible for Title IX compliance and under what circumstances it is appropriate for the board (or appropriate board committee) to meet with those administrators?
- Has the board reviewed the institution’s policies regarding sexual harassment and discussed their implementation by appropriate administrators? How often should the board discuss the efficacy of those policies with the appropriate administrators?
- Has the board and administration considered any additional campus resources that may be required to comply with these proposed regulations?
Additional Resources
2015 Updated AGB Advisory Statement on Sexual Misconduct
Department of Education Press Release on Proposed Title IX Rule – November 16, 2018
Chronicle of Higher Education, “What You Need to Know About the Proposed Title IX Regulations” – November 16, 2018
Inside Higher Ed, “New Uncertainty on Title IX” – November 20, 2018
Washington Post, “Betsy DeVos: It’s time we balance the scales of justice in our schools” – November 20, 2018
Inside Higher Ed, “What the DeVos Title IX Rule Means for Misconduct Off Campus” – November 27, 2018
We welcome questions, comments, and examples of impact from our members. For additional information, please contact Tim McDonough, AGB vice president for government and public affairs, at 202.296.8400 or messages@agb.org.