The U.S. Department of Education has issued new regulations for the nation’s K-12 and most higher education schools to use when responding to sexual harassment and assault allegations. The changes fall under the federal Title IX law, which bans discrimination based on sex in education programs or activities getting federal financial aid.
The new rule, issued in May, begins August 14 – leaving many Missouri schools rushing to comply with the changes while they also figure out how to reopen schools in a COVID-19 world.
Key provisions of the new rule include:
• Defines sexual harassment to include sexual assault, dating violence, domestic violence, and stalking, as unlawful discrimination on the basis of sex
• Requires the school to offer survivors supportive measures, such as class or dorm reassignments or no-contact orders
• Protects K-12 students by requiring elementary and secondary schools to respond promptly when any school employee has notice of sexual harassment
• Holds colleges responsible for off-campus sexual harassment at houses owned or under the control of school-sanctioned fraternities and sororities
• Restores fairness on college and university campuses by upholding all students’ right to written notice of allegations, the right to an advisor, and the right to submit, cross-examine, and challenge evidence at a live hearing
• Shields survivors from having to come face-to-face with the accused during a hearing and from answering questions posed personally by the accused
• Requires schools to select one of two standards of evidence, the preponderance of the evidence standard or the clear and convincing evidence standard – and to apply the selected standard evenly to proceedings for all students and employees, including faculty
• Gives schools flexibility to use technology to conduct Title IX investigations and hearings remotely
Kelli Hopkins, associate executive director of the Missouri School Boards’ Association, tells Missourinet the rule very narrowly defines sexual harassment and takes on a more due process approach.
“You need four trained people in pretty much what I would call courtroom-level types of process,” Hopkins says. “And we’ve got school districts with two people in the central office.”
Hopkins says the changes are very complicated.
“Now there are a set of procedures and requirements about how to investigate, who investigates, and who decides whether they did something wrong and what the penalties can be and a whole slew of brand new ways to do things,” Hopkins says.
A coordinator is required to educate the rest of the group charged with Title IX duties. An investigator is required to examine the allegations. Another individual issues a decision in each case. If an appeal is made, another person must hear each appeal.
Under the new requirements, Hopkins says if one of the parties involved in a claim leaves the school for good, the school no longer has jurisdiction. Private and criminal lawsuits could still be filed.
According to Hopkins, the new rule only applies if the alleged events took place as part of the school’s programming or activities.
The American Civil Liberties Union has filed a lawsuit requesting a federal court to block the new requirements. The organization says by adopting a rule that subjects sexual harassment to different standards than other forms of harassment, the Trump administration is doing exactly what Title IX prohibits — discriminating on the basis of sex.
The ACLU opposes the provisions in the regulation that:
• Impose an unduly narrow definition of sexual harassment, one narrower than that used for racial harassment
• Allow colleges and universities to not investigate complaints of incidents that they reasonably should have known about
• Relieve schools of the obligation to investigate many instances of student-on-student harassment or assaults that occur off campus, even where they have continuing effects on campus
• Allow schools to adopt unreasonable responses to complaints and holding them responsible only if their actions are “deliberately indifferent”
• Allow schools to apply a clear and convincing evidence standard of proof
Hopkins says a claim also being made is that the regulations will make sexual assault almost impossible to prove and could serve as a deterrent for victims to file a complaint.
She says another ACLU argument is a federal law cannot be overturned with an administrative rule.
“What they (ACLU) are saying is what Congress created, they (U.S. Education Department) have now altered so significantly that the regulations are illegal,” says Hopkins. “I think they have a legitimate argument, especially for K-12.”
A press release from the U.S. Department of Education says the new requirements hold schools accountable for failure to respond equitably and promptly to sexual misconduct incidents and ensures a more reliable judgement process that is fair to all students.
“Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault,” says U.S. Education Secretary Betsy DeVos. “This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process. We can and must continue to fight sexual misconduct in our nation’s schools, and this rule makes certain that fight continues.”
The release goes on to say the Obama administration denied students basic due process protections – leading to such cases frequently being overturned by the courts.
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