Universities have long mishandled sexual misconduct allegations. Perhaps the best-known recent example is Michigan State University and how it dealt with child sexual abuse claims against Dr. Larry Nasser. Another famous case is that of Jerry Sandusky and child sexual abuse at Penn State, where authorities knew of Sandusky’s proclivities but failed to act.
Now, changes in Title IX reporting criteria grant colleges and universities much more leeway, while potentially making it less likely that victims will report sexual assault incidents. The new rules increase protections given to students accused of sexual misconduct.
U.S. Department of Education Secretary Betsy DeVos unveiled the new regulations on May 6. Although state attorneys general and hundreds of advocacy groups and educators requested that the final rules issuance waits until after the Covid-19 crisis, DeVos declined to put the new regulations on hold.
The president of the American Council on Education, Ted Mitchell, called the new mandates “the worst in regulatory overreach.”
Under the new rules, which go into effect on August 14, colleges and universities are permitted “discretion” in determining whether employees must report sexual misconduct allegations. Employees of K-12 schools must still report any such claims.
The new regulations affect college and university coaches. Previously, their reporting was mandatory. Failure to report such allegations on the part of coaches and their assistants has been referenced in various federal lawsuits and complaints.
Campus Incidents Only
One major rule change involves location. Under the former rules, schools had to respond to incidents that did not happen on the campus. For example, if an assault by a student occurred at an off-campus dwelling, a response was necessary. Now, schools must only respond to incidents that supposedly occurred on campus or a location under the jurisdiction of the school. The latter does include fraternity and sorority houses.
Standard of Proof
Schools of higher education are also given discretion in standard of proof choice for alleged violators. The institutions can choose between the standard of “clear or convincing” or “preponderance of the evidence.” Formerly, preponderance of the evidence was the only standard. This means that at least 51 percent of the evidence points toward fault.
The definition of sexual harassment was also changed. Before, it could prove either “severe” or “pervasive.” Now the behavior is held to both standards, as well as being “objectively offensive.” That could mean many one-time incidents are no longer considered harassment or assault, such as forced touching.
Live Hearings and Cross Examinations
The changes require live hearings and cross-examination, making proceedings similar to that of a courtroom. Sexual assault victims advocates say this will result in a chilling effect for those wanting to report their assault.
Most Schools Will Adhere to Old Rules
Even if not required to, most colleges and universities will probably adhere to the former standards regarding reporting incidents to Title IX representatives. Other regulatory agencies, including the US Center for SafeSport, have stringent reporting mandates. The NCAA actually expanded its rules regarding reporting, in that athletes must now reveal whether such conduct led to an investigation, discipline under Title IX, or any criminal conviction relating to sex or violence.
Court battles are likely ahead. The National Women’s Law Center is just one organization stating it will head to court to challenge the new regulations.