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Title IX is a federal law intended to protect people from sex discrimination in education programs or activities that get federal funding. Sexual harassment and sexual violence are forms of discrimination prohibited under Title IX.
New regulations from the Department of Education provide a narrower definition of sexual harassment, require that live hearings in colleges and universities allow cross-examination of all parties and witnesses, and let schools adopt a higher evidentiary standard.
Some experts said Hoyer is right that layers added to the review and adjudication process will lead to less reporting and less accountability from schools. Others said the new rules won’t have the sweeping effect Hoyer claimed.
Democrats in Congress claim that new Trump administration rules on investigating sexual misconduct allegations in schools and colleges leave students more vulnerable to harassment.
House Majority Leader Steny H. Hoyer, D-Md., said in a May 6 statement that changes under Title IX "roll back protections" and "make it harder to protect students from sexual harassment and assault in schools and on college campuses."
Title IX is a federal law intended to protect people from sex discrimination in education programs or activities that get federal funding. Sexual harassment and sexual violence are forms of discrimination prohibited under Title IX, and institutions receiving federal funds have to investigate related allegations.
Supporters of the changes argue that Obama-era policies were too centered on accusers and denied the accused due process rights. The changes under Education Secretary Betsy DeVos, they say, are intended to balance a lopsided process. But will the impact of these new policies leave students more vulnerable to sexual harassment, as Hoyer claimed?
PolitiFact talked with experts and sought data to evaluate the accuracy of Hoyer’s characterization. Experts were mixed. Several of them said that the changes create an imbalance, and others argued that the new rules won’t have the sweeping effect Hoyer claimed. Available data is limited and inconclusive.
DeVos said the new regulations "restore due process" and outline a grievance process that presumes the accused is innocent, giving the school the responsibility of proving otherwise.
Here are some of the binding changes, effective Aug. 14, that Hoyer’s office flagged as problematic:
New sexual harassment definition: The Obama administration had a broad definition of sexual harassment: unwecolme conduct of a sexual nature, including "requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature."
The new definition, drawn from a 1999 U.S. Supreme Court case, is more specific: "unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity." Sexual assault, dating violence, domestic violence and stalking (as they are defined in the Clery Act and the Violence Against Women Act) and quid pro quo harassment also count as sexual harassment.
Live hearings with cross examinations: Colleges and universities must hold live hearings and allow cross-examination of parties and witnesses (the accuser and the accused cannot directly question each other). There was no such requirement under Obama, though court rulings in recent years have required colleges in California, Michigan, Ohio, Tennessee and Kentucky to allow cross-examination.
Standard of evidence options: Schools will be able to choose whether to approach all cases using the preponderance of the evidence standard or the more rigorous clear and convincing evidence standard. The lower standard is met if there is a greater than 50% chance that the claim is true. The clear and convincing evidence standard requires proving that it’s substantially more likely than not that the claim is true.
Mariel Saez, a spokeswoman for Hoyer, described three core objections: Giving schools the option to choose a higher standard of evidence "increases the burden of proof on victims"; allowing cross-examination of the accuser may deter people from reporting cases; and the new definition narrows the types of cases that institutions are required to investigate.
Some experts said the new regulations can lead to underreporting. Others said the new regulations include improved procedures that don’t negatively affect the investigation process.
There is "extremely limited" systematic data on the impact cross-examination has on the likelihood of students reporting sexual misconduct, or on student experiences in the process, said Elizabeth A. Armstrong, Sherry B. Ortner Collegiate Professor of Sociology at the University of Michigan. There’s also not much data on what happens as cases move through the investigative process, she said.
Armstrong said that many fear that the introduction of cross-examination will further reduce already low levels of reporting, and that in the criminal-justice context, cross-examination has been found to retraumatize survivors.
Overall, as it is, few cases are adjudicated, and expulsion for sexual misconduct is rare, Armstrong said, pointing as an example to a University of Michigan report that found that from July 2017 to June 2018, there were 277 reports of student sexual and gender-based misconduct in that university system, of which only 20 were investigated. Around 100 complaints were considered to not be within scope of the school’s policy.
"The DeVos regulations were motivated by the claim that student sexual misconduct processes were too victim-centered, leading to the expulsion of many students from American universities based on flimsy evidence," said Armstrong, who also co-wrote a piece in the Washington Post about the topic. "These claims were not true. The processes were never particularly victim-centered, and expulsion from American universities for sexual assault was a rare event throughout the entire last decade."
The goal of Title IX should be to fairly balance the rights of the parties, but both the Trump and Obama administrations have taken sides, said Brett Sokolow, chair of TNG, a firm that counsels schools and colleges on Title IX litigation and compliance.
"The Obama administration favored complainants," said Sokolow, who is also president of the Association of Title IX Administrators. "This administration now favors respondents, making Title IX a political football that shifts with each election that changes the party in power."
Sokolow said most schools will find a way to comply with the new rules, but some will have difficulties. "There is no question that the rules are burdensome, and that many schools will comply poorly, not be able to afford full compliance, or lack the resources to do this well," he said. Sokolow said it also wouldn’t be surprising if complaint reporting decreases.
Still, experts also said the new regulations offer some flexibility that could be better for people who file reports of harassment.
They allow for alternative resolutions, or more informal processes that are less adversarial and less stressful, Armstrong said. But how positive those options are depends on how schools implement them.
Additionally, the new rules say that the official who rules on a case can’t be someone who investigated it. Lara Bazelon, professor at University of San Francisco School of Law, said that can prevent bias for either side.
And even though schools have had the option since 2017 to adopt a higher evidentiary standard for claims of sexual harassment, experts told us they didn’t know of any schools that had.
KC Johnson, a professor of history at Brooklyn College and the City University of New York Graduate Center, said he did not believe that the procedural changes would decrease reporting.
Critics of the DeVos regulations argue that there’s a connection between the specific procedures that colleges use and reporting figures, Johnson said. But they don’t cite data, such as what percentage of college students know about the specific procedures their schools use and if they choose to report based on those procedures, he said.
"So there's no particular reason to believe that the procedural changes will lead to less (or more) victims reporting," Johnson said.
Title IX matters often "can be seen as a zero-sum issue," he said, "but here the interests of the three parties (accuser/accused/school) should be the same — a just and accurate outcome."
House Majority Leader Steny H. Hoyer, D-Md., statement, May 6, 2020
Email interview, Mariel Saez, a spokeswoman for House Majority Leader Steny H. Hoyer, May 7-8, 2020
U.S. Department of Education, Title IX and Sex Discrimination, page last modified Jan. 10, 2020; Know Your Rights: Title IX Prohibits Sexual Harassment and Sexual Violence Where You Go to School, page last modified Jan. 10, 2020; Sexual Harassment Guidance 1997, page last modified Jan. 10, 2020
U.S. Department of Education, Draft of new rules under Title IX
U.S. Department of Education, Secretary DeVos Takes Historic Action to Strengthen Title IX Protections for All Students, May 6, 2020
U.S. Department of Education, Title IX Final Rule Overview — Guiding Principles
U.S. Department of Education, Archive - Dear Colleague Letter, April 4, 2011
Supreme.justia.com, Davis v. Monroe County Bd. of Ed., 526 U.S. 629 (1999)
Mlive.com, UM student accused of sexual misconduct may question victim, appeals court rules, updated Jan. 29, 2019, posted Sept. 7, 2018
Los Angeles Times, Ruling affirming the rights of students accused of sexual misconduct roils California colleges, Feb. 14, 2019
Washington Post, Why the cross-examination requirement in campus sexual assault cases is irresponsible, May 7, 2020
University of Michigan, University of MichiganAnnual Report Regarding Student Sexual & Gender-Based Misconduct & Other Forms of Interpersonal Violence July 2017-June 2018, Sept. 5, 2018
Email interview, U.S. Department of Education press office, May 12-13, 2020
Phone and email interview, Elizabeth A. Armstrong, Sherry B. Ortner Collegiate Professor of Sociology at the University of Michigan, May 12-13, 2020
Email interview, Brett Sokolow, chair of TNG and president of the Association of Title IX Administrators, May 8, 2020
Phone interview, Lara Bazelon, professor at University of San Francisco School of Law, May 8, 2020
Email interview, KC Johnson, a professor of history at Brooklyn College and the City University of New York Graduate Center, May 8, 2020
Email interview, National Women’s Law Center press office, May 13, 2020
Phone interview, Daiquiri Steele, a Forrester Fellow at Tulane University Law School, May 12, 2020
Email interview, Nancy Chi Cantalupo, associate professor of law at Barry University Dwayne O. Andreas School of Law, May 8, 2020