Education Secretary Betsy DeVos Proposing New Title IX Sexual Misconduct Regulations
| | Title IX : News
News reports indicate that U.S. Secretary of Education Betsy DeVos is preparing to propose a set of regulations regarding sexual misconduct complaints under Title IX of the Education Amendments of 1972. While the New York Times received a copy of what appears to be the proposed rules, a spokesperson for the Education Department claimed the information was “premature” and “speculative.” Even though this may not be the final draft of the intended regulations, it may provide a good idea of the policies DeVos and her department will seek to enact.
Overall, the proposal draft reflects the interim policies of DeVos, which we previously discussed. The following are some highlights of the potential proposed regulations:
- Defining “sexual harassment” as unwelcome sexual conduct that is so “severe, pervasive, and objectively offensive” that it denies a student’s access to education or a school program—a significantly narrower definition than the previous rules.
- Colleges and universities are only responsible for addressing complaints of sexual misconduct occurring on campus or in relation to school programs, and not for misconduct that occurs off campus, such as in private apartments.
- The Office of Civil Rights (OCR) would only hold colleges and universities accountable for their response—or lack thereof—to formal complaints of misconduct filed through official channels, or to accusations of which school officials have concrete and actual knowledge. Officials are defined as people with the authority to take corrective action, and not someone like a peer counselor or resident adviser.
- In sexual misconduct proceedings, schools could choose what legal standard they want to use to determine guilt—either “preponderance of the evidence” or a significantly higher standard of “clear and convincing evidence,” which is harder for victims to prove.
- OCR would also adopt a higher legal standard when determining whether a school violated a student’s rights under Title IX.
These policies give greater favor to colleges and students accused of sexual misconduct that the policies under the Obama administration. This is not surprising, however, because the current administration has made it clear it believes the previous guidance went too far in favor of accusers and victims.
Another key difference is that Secretary DeVos will try to enact her regulations with the power of law. While the Obama administration issued guidance rules, it did not go through the public comment process to enact the rules as law. We will watch the situation to stay apprised of all new Title IX developments to come.
Consult an Experienced New Haven, Connecticut, Title IX Attorney
Whether you were the victim of sexual misconduct on campus or someone accused you of misconduct, consult an attorney who has experience handling Title IX cases. This complex law and the regulations that govern its implementation change constantly. At Nesenoff & Miltenberg, LLP, our attorneys understand how to evaluate Title IX cases and advise clients of their rights and options. To schedule a consultation, please do not hesitate to call (212) 736-4500 or contact us online right away.