Thursday, May 7, 2020

New Title IX regs are here!

The Obama administration's Title IX "Dear Colleague" letter was the source of a lot of controversy (and, frankly, a lot of litigation). The Trump administration quickly tore up the Dear Colleague letter.  As an aside - this is one of many reasons why you don't govern by posting what was essentially a blog entry on the Department of Education website . . . as quickly as you put it up, the next administration can take it down. But, I digress.

Betsy DeVos announced new Title IX regulations yesterday. You can read the Final rule here. Suffice it to say that I have not yet had an opportunity to digest the 2033 (!) pages yet. Per the Department of Education press release, these are the "Key Provisions":

  • Defines sexual harassment to include sexual assault, dating violence, domestic violence, and stalking, as unlawful discrimination on the basis of sex 
  • Provides a consistent, legally sound framework on which survivors, the accused, and schools can rely 
  • Requires schools to offer clear, accessible options for any person to report sexual harassment 
  • Empowers survivors to make decisions about how a school responds to incidents of sexual harassment 
  • 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 
  • Provides "rape shield" protections and ensures survivors are not required to divulge any medical, psychological, or similar privileged records 
  • Requires schools to offer an equal right of appeal for both parties to a Title IX proceeding 
  • Gives schools flexibility to use technology to conduct Title IX investigations and hearings remotely 
  • Protects students and faculty by prohibiting schools from using Title IX in a manner that deprives students and faculty of rights guaranteed by the First Amendment
These will likely be controversial as well. I'm sure we're in store for plenty of developments on this front.

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