In August 2018, it became public knowledge that the U.S. Department of Education was considering releasing a set of revisions to policies about Title IX of the Education Amendments Act of 1972. Title IX, the federal law that prohibits sex-based discrimination in the majority of U.S. schools, often serves as the basis for how those establish their own discrimination and harassment policies.
In 2011, the Office of Civil Rights (an office within the Department of Education), released major guidance in a “Dear Colleague Letter.” That guidance led to several controversial changes in how schools handle sexual harassment and sexual misconduct investigations. Both supporters and critics of the guidance argued that guidance provided “enhanced protections” for those who experience sexual violence. Critics argued, however, that the protections came at the expense of due process for those accused of sexual misconduct.
Secretary of Education Betsy Devos has since rescinded the 2011 guidelines, explaining the guidelines may have led schools to create and implement “procedures for resolving allegations that ‘lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.’”
Under Devos’s leadership, the Department of Education released interim guidance in September 2017. The guidance, the proposed rules leaked in August, and Secretary Devos’s recent statements provide insight into the direction Title IX guidance is heading. It is clear the Department of Education is concerned with ensuring that the rights of the accused are protected, but some have wondered if, to remedy a perceived imbalance, the new rules will fail to achieve equity and will instead favor the accused over those bringing complaints.
What are the likely outcomes?
Schools will likely get to select which standard of evidence to use in determining whether someone engaged in sexual misconduct.
Under the 2011 guidance, schools had to use the preponderance of the evidence standard, known as the more likely than not standard. The 2017 interim guidance and draft proposed rules offer schools the choice of a more exacting standard, the clear and convincing standard. The Department of Education likely would not require the use of the clear and convincing standard but rather would present it as an allowable option. Given that prominent organizations like the Association of Student Conduct Administrators have continued to suggest that the “more likely than not” standard is the most fitting standard, and that most schools have been using that standard for many years to adjudicate any conduct case, it seems likely that many schools will keep the preponderance standard moving forward.
A more likely change, however, will be to what opportunities an accused individual has when it comes to questioning or confronting an accuser. The 2011, Obama-era guidance strongly discouraged allowing an accused individual to directly confront their accuser through the kind of cross examination seen in court rooms. But the Wall Street Journal recently reported “people familiar with” a revised draft of the proposed Title IX regulations believe the new regulations “will require that accused students be allowed to cross-examine their accusers.”
It is unlikely the Department of Education will mandate that traditional cross examinations be a part of school sexual misconduct proceedings, at least without the applicability to colleges and universities only. Since Title IX applies to all levels of educational institutions, mandatory cross examination could mean seasoned attorneys representing a high-profile coach get to cross-examine each of the young student athletes accusing that coach of sexual abuse. It could mean a school principal or attorney for the principal can cross examine the middle school student with a learning disability who reported the principal behaved in an inappropriate, sexually explicit way. But the goals of cross examination, at least in a school proceeding, can be achieved in other ways like having questions directed to an investigator or neutral fact-finding body.
Other likely changes hinted at or signaled in the proposed rules leaked in August include easing the process for religious institutions to seek Title IX exemptions; offering relaxed timeframes for resolving complaints; and allowing schools to set limits for investigating complaints related to behavior that took place off-campus.
While there is uncertainty about what will be required and prohibited versus what will be encouraged or discouraged, one rule isn’t likely to change. Schools still must publish their harassment and discrimination policies and procedures. So if a school changes their policies, regardless of why it made those changes, it should publish the updates.
Often school policies are posted online. For colleges and universities, the policies are often found on websites for departments like Human Resources; Student Conduct or Discipline Offices, Offices of Judicial Affairs, Offices for Student or Faculty Affairs, the Dean of Students Office, Institutional Equity or Compliance Offices or whatever other office oversees enforcement of employee and student conduct issues. The same is true of elementary, middle, and high schools, though the policies may be housed on a district’s website rather than individual school site with public schools.
With changes likely to be announced by the end of 2018, it will be important for anyone bringing or facing complaint and for attorneys helping those individuals to understand what a school’s policies are and how those policies might be affected by this year’s legal developments.
By Alexandra Tracy-Ramirez, HopkinsWay PLLC. | © HopkinsWay PLLC 2018. All rights reserved.