Title IX Changes Ace First Test

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| Aug 27, 2020 | Title IX |


It was a big month for the United State Department of Education. Early in August federal courts cleared the way for the DOE’s proposed reform of Title IX. The new regulations took effect on August 15.

Action was overdue. Since Title IX’s passage in 1972 the Department had never formally defined ‘sexual harassment’. It had never formally told officials how to handle students’ complaints.

Over the years the Department had issued letters of ‘guidance’, mostly recently during the Obama administration. The guidance left administrators free to conduct hearings as they chose. They wound up dissatisfying both accusers and accused. Since the DOE looks after the federal government’s money, the new regulations will apply to all publicly-funded schools and colleges.

The regulations now define sexual harassment. It is unwanted and “pervasive” sexual conduct that keeps a victim from going to class or taking part in activities. For pupils in grades K – 12, this definition is not new. It follows the law the United States Supreme Court set for them in the 1990’s. For college officials, however, it offers a clear standard.

The regulations also make clear what officials must do when they find harassment has taken place. They must take steps to stop harassment and remedy its effects. If the Department finds that officials instead showed ‘deliberate indifference’, it can withhold federal funds. Although the DOE so withheld only once, the threat of losing money makes people pay attention.

The bigger change will be in due process. The Department’s guidance always required schools and colleges to have general procedures to field students’ complaints of harassment. Now hearings must follow specific rules. Officials must allow both accuser and accused to have an ‘advisor’ that can cross-examine the other side’s witnesses. Both accuser and accused will receive the same notice of allegations. Both will have the same right to appeal.

When it was first proposed, this change sparked the greatest debate. Critics charged the Department with favoring the perpetrators of sexual misconduct, allowing them lawyers to silence their victims. Defenders answered that the new rules merely proposed to restore due process and level the field.

Opponents took to the courts. In June of this year the attorneys-general of eighteen states went before federal judges in two district courts. In both cases they asked for an injunction suspending the proposed regulations. They argued that in making the proposals the Department had failed to follow proper procedures. Furthermore, the new rules risked harm to thousands of victims of harassment or unfair hearings. The Attorney General of New York argued that the state would waste millions of dollars trying to comply.

Both courts denied the request. They ruled that the Department had proposed its rules properly. Moreover, said the judges, instead of harming pupils and students, the reforms looked to guarantee fairness equally to accuser and accused.

All this could change through this fall’s election. As Vice President, Joe Biden supported the Obama administration’s guidances on Title IX. Although he has not addressed the issue in his campaign, as President he would have the power to order the Department of Education to reverse course. Regardless of one’s political beliefs, no one should welcome that kind of upheaval.