New Title IX Regulations

On May 6, 2020, the U.S. Department of Education issued new Title IX regulations. Among other things, Title IX governs how colleges and universities respond to sexual harassment allegations. This was the primary subject of the new regulations.

U.S. Secretary of Education Betsy DeVos proclaimed the regulations an “historic action … to strengthen Title IX protections for survivors of sexual misconduct….”

Among the provisions cited by Secretary DeVos to support her assertion that the regulations strengthen Title IX were:

• The new definition of sexual harassment as a form of unlawful sexual discrimination that includes sexual assault, dating violence, domestic violence and stalking;
• The requirement that schools offer clear, accessible options for reporting sexual harassment;
• The inclusion of school-sanctioned fraternities and sororities within schools’ areas of Title IX responsibility (but not other off-campus housing); and
• The provision of “rape shield” protections for survivors, including preventing them from having to come face-to-face with the accused during hearings.

In most cases, the expansions identified above merely incorporated into rule guidance issued by the U.S. Department of Education in 2011 and 2014.

Several components of the 2011 and 2014 guidance, however, were omitted or altered in the new regulations. Three of the most significant:

• While the earlier guidance stated that colleges and universities should use the “preponderance of the evidence” standard in determining guilt in sexual misconduct cases, the new regulation allows colleges and universities to apply either a “preponderance of the evidence” or a “clear and convincing” standard;
• The new regulations contain additional due process process protections, including requiring live hearings and providing students’ advisors the right to cross-examine parties and witnesses; and
• The new regulations explicit require institutions to presume the accused innocent.

Not surprisingly, these latter changes have been criticized by survivors’ advocacy groups.

Colleges and universities must comply with the new regulations by August 14, 2020.