The U.S. Department of Education released final regulations on Title IX on May 6, 2020. The final campus sexual assault rules come two years after revoking previous guidance and the convening of a negotiated rule making committee. The proposed draft regulations received over 12,500 public comments. Congressional Democrats had petitioned Education Secretary Betsy DeVos to hold off on issuing the final rules while colleges are grappling with the closures to campuses. A spokesperson from the department said campus Title IX coordinators were prepared for the release of the final rule and were mostly likely not redeployed to COVID-19 response activities.
In 2011, the Obama administration issued a “Dear Colleague” letter to higher education institutions, outlining how the department would assess compliance with Title IX. That guidance required schools to make findings of sexual harassment and assault based on a “preponderance of the evidence” rather than the more demanding “clear and convincing” standard used on many campuses. The letter also discouraged schools from permitting the parties to personally to cross examine each other as it “may be traumatic or intimidating” to complainants.
In 2017, DeVos rescinded the 2011 Dear Colleague guidance, criticizing it for creating a “failed system,” one lacking in due process for the accused. In her final regulations, harassment is defined more narrowly than under the Obama administration. Conduct can no longer be any “unwelcome conduct of a sexual nature”; it must be “unwelcome conduct on the basis of sex that is so severe, and pervasive and objectively offensive that it effectively denies a person access to the school’s education program or activity.” The final rules permit schools to choose either the preponderance of the evidence standard or the more difficult clear and convincing standard, as long as schools use the same standard in other judicial proceedings carrying the same maximum penalty. The most controversial requirement is for schools to hold live hearings, with cross examination by attorneys permitted.
Lawsuits from advocacy groups challenging the final rule are likely; some have previously threatened litigation to block implementation. The upcoming presidential election in the fall could also result in a Democrat-appointed Secretary of Education able to reset Title IX policies again.