New federal Title IX regulations announced amid criticism

May 11, 2020

Content Warning: This article discusses sexual harassment and assault.

Secretary of Education Betsy DeVos announced new rules regarding federal Title IX regulations on May 6. These regulations come after a preliminary proposal in 2018 and concentrate on procedural changes regarding sexual harassment and assault allegations, including introducing mandatory live hearings and limiting the liability of universities in investigations.

According to DeVos, the new rules are designed to refocus on due process by narrowing the scope of claims of sexual harassment or assault that a university must investigate and reducing schools’ liability, while allowing equal access to evidence and advisors to both the plaintiff and the accused. Detractors argue that schools will be held less accountable for the actions of its students or faculty, cases may drag out as schools will not be held to the previous 60-day maximum to adjudicate cases, and victims of sexual violence may have to relive their trauma during cross-examination.

The proposed changes were first made public in 2018, when DeVos allowed for a period of public comment. More than 124,000 comments were submitted, including one by Georgetown citing several concerns about the new regulations. The university held 11 listening sessions with students, faculty, and staff in order to gather feedback for the Department of Education. 

Sara Collina, adjunct professor in the Women and Gender Studies Department, felt as though the changes are in line with other policies from President Donald Trump’s administration. “The administration’s goal is to make it more difficult to hold perpetrators of sexual harm accountable and more difficult to hold schools themselves accountable for creating and maintaining an educational environment free of sexual harassment and assault,” Collina wrote in an email to the Voice. “These regulations do just that.”

Siona Sharma (SFS ’20), a member of Collina’s Title IX for a New Generation class, concurred. “Essentially, they further limit support to complainants and ease the burden of responsibility felt by institutions,” Sharma wrote in an email to the Voice. “It is clear that these regulations were not made with survivors in mind.”

Title IX of Education Amendments of 1972 restricts “discrimination based on sex in education programs or activities that receive Federal financial assistance,” according to the U.S. Department of Education website. During his presidency, Barack Obama made stringent reforms to the policy through a series of non-legally-binding letters meant to be used as guidance for universities across the country. Devos’s changes are official government policy, and universities must adhere to them by Aug. 14. 

The new regulations raise the bar for claiming sexual harassment, redefining it from “unwelcome conduct of a sexual nature” to “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.” Action must be taken when schools have knowledge of the sexual harassment as filed by the plaintiff or Title IX coordinator and the harassment or assualt occurred within the school’s education program or activity, which includes off-campus buildings owned or controlled by the university. 

During the investigation proceedings, both parties have equal opportunity to select an advisor, who may be an attorney, as well as equal opportunity to submit and review evidence. The new rules state there is a presumption of innocence of the accused and allow schools to choose whether to place the burden of proof at either the preponderance of evidence or clear and convincing evidence. Preponderance of evidence means the investigation finds that the accused more likely than not committed the violation, while clear and convincing evidence requires a higher bar. Finally, a live hearing must be held, and cross-examination of both parties by their selected advisors must be allowed. 

Sharma believes that these changes will make university transparency on these rules more essential. “Going forward, there is no room for this ambiguity without hurting students. The Title IX office must be clear about communicating how the role of advisors, standard of evidence, and limited ‘validity’ of reports will affect students, so students know whether they can trust the University with their case,” Sharma wrote.

The new guidelines also limit the types of university employees considered mandatory reporters, and absolve schools of the responsibility to investigate incidents that take place off-campus or while students are studying abroad.  Coaches and athletic administrators are no longer mandatory reporters, and any claims must go through the Title IX coordinator, or a school administrator with “authority to institute corrective measures” in order to be considered for adjudication. Previously, universities were required to act as soon as any mandatory reporter had knowledge of an allegation.

Additionally, religious institutions such as Georgetown may now qualify for exemptions without submitting a written statement in instances in which they believe their religious tenets conflict with Title IX provisions, generally in cases of gender-based hiring. In the past, schools such as Crowley College have requested religious exemptions in order to hire dorm supervisors based on sex. The new regulations remove the need for written correspondence when asking for the exemption.

According to a university spokesperson, “Georgetown has never made use of the religious exemption in Title IX, and does not plan to do so.”

According to an university-wide email sent by Samantha Berner, Title IX coordinator and director of Title IX compliance, Georgetown is dismayed by the new regulations. 

“We are carefully reviewing the regulations to determine how they may affect our community and the University’s policies, and in the meantime, Georgetown’s current policies and processes will remain in place,” Berner wrote. “We are deeply disappointed the new regulations do not reflect many of the concerns we raised through our formal comment to the Department of Education and are very concerned by the short time frame colleges and universities have been given to implement these complex regulations during such difficult times.”

Sharma believes that the new regulations leave Georgetown with a choice that they will need to make. “This could be an opportunity for the university to step up and restore that trust by establishing new University guidelines to supplement the insufficient federal regulations; this could just as equally be a chance for the university to simply follow the federal guidelines and reduce their burden,” she wrote. 

Moving forward, Berner indicated that Georgetown will follow federal regulations but is considering all options to continue fostering a safe environment for all Georgetown students. “We know there is more to do and we are continuing to strengthen our resources, particularly focused on supporting vulnerable and underserved populations,” Berner wrote. “We will focus on sexual misconduct education and prevention, provide support for individuals impacted, and continue to implement prompt and equitable processes to respond to reports of sexual misconduct.”

While Collina personally does not like the regulations, she knows that the work that goes into promoting a healthy and safe campus does not start and end with government regulations. “Georgetown students deserve a safe and respectful community where no one experiences sexual harm,” she wrote. “Only Georgetown students themselves really know what that looks like. No law or regulation can make that happen- it will take students working together and changing the rules of how we treat each other to wash away rape culture for good.”


Confidential Resources:

Health Education Services (HES):

Counseling and Psychiatric Services (CAPS): (202) 687-6985; after hours, call (833) 960-3006 to reach Fonemed, a telehealth service; individuals may ask for the on-call CAPS clinician

DC Rape Crisis Center: (202) 333-RAPE (24/7 hotline)

Rape, Abuse, and Incest National Network (RAINN): 1-800-656-HOPE (24/7 hotline)

Title IX Online Reporting Form:

Roman Peregrino
Once upon a time, Roman was the Voice's EIC as well as news, managing, and sports editor. He is from San Francisco and a lot less Italian than his name suggests.

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