On May 6, the U.S. Department of Education (ED) and U.S. Secretary of Education, Betsy DeVos, released new revisions to strengthen its Title IX Final Rule regulations. The Final Rule prohibits discrimination on the basis of sex in education programs or activities that are receiving federal assistance.
The new regulations also embrace the Supreme Court’s definition of hostile sexual harassment as "unwelcome conduct that a reasonable person would determine so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school's education program or activity." This is a critically important provision because the previous regulations employed a broad definition of "any unwelcome conduct of a sexual nature."
The fact that the final document is over two thousand pages long demonstrates just how seriously the DoED’s Office of Civil Rights took the feedback it received from more than 100,000 public contributors.
Although the majority of these rules will apply to colleges and universities, administrators of K-12 institutions must be aware of them as well. In addition to employees of K-12 schools being “mandatory reporters of child abuse,” there is an existence of sexual harassment and sexual assault on the K-12 school level.
The other significant revision is the requirement that universities adjudicate formal complaints of sexual misconduct using live hearings. During these live hearings, each party is permitted to conduct cross-examination. The regulations also make clear that cross-examination can only be done through an advisor. This is due to the concern that “parties will feel traumatized by the prospect and reality of personal confrontation.” Even though this is not a favorable adjustment, it is still an important one to take note of.
The historic revisions to hold schools accountable for the failure to respond fairly and promptly to sexual misconduct incidents is a step in the right direction. Title IX regulations hold not only colleges responsible for on-campus sexual harassment but also off-campus sexual harassment “at houses owned or under control of school-sanctioned fraternities and sororities.”
Colleges and universities across the U.S. that receive federal funding MUST be in compliance with these new rules by August 14. The Department of Education states these regulations rebalance “scales of justice.”
