On August 14th, 2020, DeVos’ Title IX rule went into effect. This rule severely reduces school’s obligations to prevent and respondent to sexual harassment and assault. If you are considering reporting to your school, here are the most important pieces of the rule to know. It’s important to note that schools can still have their own policies outside of Title IX that may cover a broader scope of violence that what the rule does. Be sure to check to see if your school has a sexual misconduct policy as well.
1. The Rule Narrows What Constitutes Sexual Harassment
The new Rule makes it so that schools have to respond to reports of far fewer forms of violence under Title IX than they previously did. Instead of any violence or harassment that impeded a student’s access to education, schools must now respond only to violence that:
- Constitutes sexual assault under the Clery Act
- Sexual assault: any nonconsensual sexual act proscribed by Federal, tribal, or State law, including when the victim lacks capacity to consent.
- Constitutes dating violence, domestic violence, or stalking under the Violence Against Women Act
- Domestic violence: “includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction.”
- Dating violence: “violence committed by a person—(A)who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B)where the existence of such a relationship shall be determined based on a consideration of the following factors:
- (i)The length of the relationship.
- (ii)The type of relationship.
- (iii)The frequency of interaction between the persons involved in the relationship.”
- Stalking: “engaging in a course of conduct directed at a specific person that would cause a reasonable person to— (A)fear for his or her safety or the safety of others; or (B)suffer substantial emotional distress.”
- Is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access” to education
2. The Rule Narrows the Circumstances Where A School is Responsible for Responding to a Report
Schools no longer have to respond to all reports of sexual violence made to any school employee, they now only have to respond if the report is made to the “right person.” In K-12 schools, a report to any teacher counts. In college, however, the only reports that count are the ones made to someone with “the authority to institute corrective measures on behalf of the [school].” This likely describes only a handful of people, such as the Title IX coordinator and a few deans.
3. The Rule Lets Schools off the Hook for Most Off-Campus Violence
The Rule only allows schools to respond to reports of violence that took place either on campus or otherwise “within an education program or activity.” This means schools must ignore violence that occurs at a school-sponsored event or in a school-owned building but not at an unofficial fraternity house or an off-campus, unregistered party. Schools are also forced to ignore violence that occurs outside of the United States, during study abroad or other trips, regardless of whether the program is school-sponsored.
4. The Rule Allows for Lengthy Investigations
The Rule bars schools from adopting a timeline in which they guarantee they will carry out investigations of reported violence and allows schools to draw out their investigations indefinitely.
5. The Rule Forces Schools to Start by Disbelieving the Survivor
Under the Rule, schools must presume that a respondent is not responsible for the violence of which they are accused. This means schools must start by disbelieving survivors, whereas they are not required to do so for students reporting any other type of violence.
6. Allows Schools to Subject Complaints of Sexual Misconduct to Greater Scrutiny than Any Other Types of Complaints
The Rule lets schools choose between the appropriate standard of evidence, the preponderance of the evidence, and a heightened standard, clear and convincing evidence. The preponderance of the evidence asks the decision maker to weigh each party’s word evenly and decide whether it is more likely than not that the respondent committed the violence alleged. Clear and convincing evidence, however, stacks the deck against complainants, requiring them to overcome a greater burden than the respondent in order to prevail.
7. Gives Student Parties Unfettered Access to Evidence, Even if Irrelevant, Harassing, or Shaming
Schools must now allow both parties to review all evidence submitted by either party, even evidence that is not considered relevant or that shames or blames the victim.
8. Requires a Live Hearing, Including Cross Examination by Parties’ Advisors
The Rule requires colleges to hold live hearings for all sexual misconduct complaints that move forward, and those hearings must allow each party to be cross examined directly, orally, and in real time by the other party’s advisor of choice. A live hearing is not required at the K-12 level, and questions may be proposed in writing rather than orally. If a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility.
9. Limits the Kinds of Supportive Measures Schools Must Provide Survivors Under Title IX
Schools may not provide any supportive measures to complainants that may be construed as disciplinary, punitive, or unreasonably burdensome to respondents.
10. Allows Mediation Even for Cases of Dating and Sexual Violence
Under the Rule, schools may allow unregulated mediation even in cases of dating and sexual violence. Luckily, mediation is not allowed for employee-on-student sexual misconduct.
11. Stays Silent on Protections for Queer and Trans Students
The Rule does nothing to proactively support queer and trans students against discrimination in school. The Department rescinded past guidance protecting trans students and expressly omitted any of these types of protections from the Rule, leaving queer and trans students without express federal protections.
12. Allows Schools to Take a Religious Exemption After They Are Under Investigation
Whereas schools used to have to decide ahead of time if they were taking a religious exemption from Title IX, schools may now opt for a religious exemption only after they find out they are under investigation for discrimination.