The Controversial Proposed Title IX Regulations Addressing Sexual Assault on Campus (Part 1)

The U.S. Department of Education, on November 16, 2018, published proposed Title IX regulations intended to address one of the most fraught areas of campus life and politics: institutional procedures for investigating and resolving complaints of sexual harassment and sexual assault in educational institutions funded by the federal government. The proposed rules, set forth in a notice of proposed rulemaking (“Title IX Notice”), have been hailed in some quarters as a corrective to supposed biases in favor of accusers, but have been attacked as retrograde by advocates for the survivors of sexual assault. During the sixty day period for comments on the rules, the Department of Education received an extraordinary 100,000 comments. We intend, through a series of articles, to address some of the key proposals to the Title IX regulations and selected responses to them. This first article will address the background to the proposals.

Title IX prohibits discrimination on the basis of sex in education programs and activities that receive federal financial assistance. See 20 U.S.C. 1681(a). Title IX is enforced by the U.S. Department of Education’s Office for Civil Rights (“OCR”), which conducts compliance reviews and responds to complaints alleging sex discrimination.

Existing Title IX regulations promulgated in 1975 address a broad range of issues, but do not address the responsibilities of universities or secondary schools to combat sexual harassment or assault on campus. In 2011, during the Obama presidency, the OCR issued a “Dear Colleague” guidance letter that governed schools’ approach to these matters for several years. The Department of Education, under Betsy DeVos, withdrew this 2011 guidance in September 2017, and one year later released the proposed Title IX rules. With the close of the comment period, the Department of Education will consider the comments and possibly revisit at least some of the proposed regulations. This process is likely to take at least several more months to complete. The Department of Education, should it revise the proposed rules, may offer an additional period for new comments. Once new rules are issued, it is quite likely that they will be challenged in the courts as arbitrary, in violation of statutory authority or without proper adherence to procedure during the rulemaking process. For all these reasons, it will be some time before any binding changes become operational.

The Title IX proposals were designed to address critics’ concerns over the Obama-era guidance and the Title IX procedures and practices adopted on campus in response to this guidance. For example, in an article in The Atlantic dated September 4, 2018, Emily Joffe, a contributing editor, while describing the Trump administration as “morally reprehensible,” summarized the concerns of critics of the Obama guidance, including:

• A supposed “radical inflation” of the definition of sexual misconduct on campus to “potentially include virtually any sexual encounter—from behavior that could meet the criminal definition of rape, to jokes and unwanted flirtation.”
• The alleged “overpolicing of sex between young adults” which sometimes “resulted in adjudications that assume guilt, rely on junk science, gut fundamental fairness, engage in racial animus, and disregard the effects of ending men’s education and crushing futures.”
• Rhetoric on campus reported as “alarming, telling young women they are weak, helpless, and lack sexual agency, and that their male classmates are inherently violent and exemplars of ‘toxic masculinity.’”
• Training materials for use in Title IX proceedings which are supposedly “shot through with assumptions that female accusers have experienced life-threatening ordeals and that male accused are serial predators.”
• The creation of mandatory reporting, where most school employees were “responsible for alerting Title IX officials about possibly questionable sexual encounters, even if a supposed victim had no interest in reporting.”
• The supposed requirement that “schools assess allegations of sexual misconduct using the lowest legal standard, ‘preponderance of the evidence,’ or what is numerically rendered as anything over a 50 percent likelihood…” rather than using the “higher standard” of “clear and convincing evidence.
• An alleged lack of procedural fairness to both the accuser and the accused, including failure to advise an accused of the charges and evidence supporting the accusation.

In addition to this public criticism, there have been numerous challenges in the courts to the fairness and effectiveness of Title IX procedures—the Department of Education’s Title IX Notice states that “over 200 students have filed lawsuits against colleges and universities alleging their school disciplined them for sexual misconduct without providing due process protection.” In a case cited by the Title IX Notice, Doe v. Baum, 903 F.3d 575, 578 (6th Cir. 2018), the Sixth Circuit Court of Appeals addressed the University of Michigan’s failure to permit the cross-examination of an accuser asserting claims of sexual assault against another student in an internal university hearing, holding that “if a public university has to choose between competing narratives to resolve a case, the university must give the accused…or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.”

Secretary DeVos, in a September 2017 speech quoted in the Title IX Notice, “emphasized the importance of Title IX and the high stakes of sexual misconduct” and “identified problems with the current state of Title IX’s application in schools and colleges, including overly broad definitions of sexual harassment, lack of notice to the parties, lack of consistency regarding both parties’ right to know the evidence relied on by the school investigator and right to cross-examine parties and witnesses, and adjudications reached by school administrators operating under a federal mandate to apply the lowest possible standard of evidence.” The newly proposed rules are supposed to address these problems.

Unsurprisingly, following the publication of the proposed rules, there has been pushback from advocates for victims of sexual assault and from opponents of the Trump administration. As reported in The Atlantic, New York Senator Kirsten Gillibrand has tweeted that Secretary DeVos favors “predators over survivors,” and Connecticut Senator Richard Blumenthal has tweeted that the proposals were “deplorable & disgusting.” In our upcoming articles we will address specific proposals and representative responses from commentators.

Other articles in this series:
• Defining Sexual Harassment on Campus in the Proposed Title IX Regulations (Part 2)
• The Proposed Title IX Regulations on Reporting Sexual Harassment and Assault on Campus (Part 3)
• The Proposed Title IX Regulations on Live Hearings and Cross-Examination (Part 4)
• The Proposed Title IX Regulations on Evidentiary Burdens of Proof (Part 5)

This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon. We would be pleased to consider providing additional details or advice about specific situations. For additional information on this topic, please feel free to contact Mark H. Moore, who regularly counsels and litigates for clients in connection with sexual harassment and discrimination claims. As part of RPJ’s robust employment practice, the firm offers both in-person and online sexual harassment prevention training programs for employers and universities. More information can be found on our Training Programs page.