In May 2020, the US Department of Education, headed by Secretary Betsy Devos, announced new regulations to Title IX of the Education Amendments Act of 1972, governing how educational institutions, including colleges and universities, respond to allegations of sexual harassment, sexual assault, domestic violence, dating violence, and stalking.
The new rules take effect on August 14, 2020. The Department received 124,000 public comments on the regulations originally proposed in November 2018, before adjusting and finalizing them. The Vermont Commission on Women was among those offering public comment on the proposed regulations in January 2019.
The new Title IX regulations make broad, sweeping changes to the way educational institutions are required to respond to reports of sexual harassment and assault, particularly at colleges and universities. VCW has issued an Information Brief which provides details about the regulations we believe to be most significant. Here, we highlight a few of these rules.
The Title IX regulations redefine sexual harassment as “Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” VCW remains concerned that this definition sets the bar for a sexual harassment report too high and will create an environment where, from a legal perspective, students will be expected to endure more sexual harassment at school than employees are in the workplace.
The regulations also limit who students can report sexual harassment to. Students must make their report to a limited set of individuals: the Title IX Coordinator, and “officials who have the authority to institute correctional measures”. While we appreciate clarifying who at a school can receive such reports, we remain concerned that this regulation is too restrictive. Students often report sexual misconduct to people they have a relationship with, including respected professors and advisors.
Perhaps the most significant change, the new regulations overhaul grievance procedures schools must implement. Changes include: requiring schools to conduct live hearings with the right to cross-examination; allowing for a voluntary informal dispute resolution process; and preventing schools from prohibiting parties from speaking about the allegations. We remain concerned that these changes will have a chilling effect on reporting, and are requiring schools to implement quasi-judicial procedures in an education setting, where they may not be properly equipped to do so.
While we appreciate the clarity created by these regulations and the codification of many practices that educational institutions were already implementing, we remain concerned that these broad changes, which when proposed, generated a tremendous outpouring of public concern, will make it harder for students to report, more difficult and costly for schools to respond, and less likely to result in positive outcomes for the students involved.