On November 16, 2018, U.S. Secretary of Education Betsy DeVos released proposed changes to Title IX regulations on sexual harassment. While the public has 60 days to comment before the regulations take effect, the following are the key aspects of the proposed changes:
- New Definition. The previous regulations defined sexual harassment broadly as “unwelcome conduct of a sexual nature.” The newly proposed regulations narrow the definition to “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.” This would create a much higher bar to establish sexual harassment than the current definition.
- Mandatory Reporting. Currently, most colleges designate professors and other staff as mandatory reporters, requiring them to report possible incidents to the Title IX Office. The new regulations would only require officials who are able to remedy the situation to report formal complaints, meaning professors, resident advisers and others would no longer necessarily be required to report.
- Scope. Colleges would only be responsible for investigating cases where the incident happened on campus or within an educational program or activity. Incidents that occur at off campus housing, for example, would not qualify under the proposed rules.
- Cross Examination of the Accuser. The accused would have the guaranteed right to cross-examine the accuser. This would take place in a live hearing done by a lawyer or adviser, though the parties could be in separate rooms. This is one of the most significant changes from the previous Title IX guidance, which discouraged cross-examination to avoid traumatizing victims.
- Optional Higher Standard of Proof. Colleges would have the option of applying either a preponderance of the evidence standard or the more stringent clear and convincing evidence standard to allegations of sexual harassment.
- Change in Procedures. Colleges would be allowed to use informal resolution processes, such as mediation, if both parties agree.
The proposed Title IX changes would usher in a fundamental shift in the way colleges adjudicate claims of sexual harassment shifting from an investigative model to a system of court-like hearings, with a narrower definition of offending conduct, varying standards of proof, and the right to cross examination.