The Department of Education has released proposed changes to Title IX regulations that govern how colleges and universities handle campus sexual assault investigations.
The proposed rules are the latest step Education Secretary Betsy DeVos has taken to roll back Obama-era regulations. In September of last year, DeVos rescinded a series of “Dear Colleague” letters that had been issued under the Obama administration, which focused on how colleges and universities should handle campus sexual assault investigations. Shortly after, ED released a Q&A document designed to provide interim guidance until it could develop and propose new Title IX regulations governing campus sexual assault, which were released in November.
When the notice of proposed rulemaking (NPRM) is officially published in the Federal Register, the public will have a 60-day comment period to weigh in on the proposed rules. While no official publication date has been scheduled, it’s anticipated it will happen soon.
The proposed rules differ in a number of ways from the existing campus sexual assault investigation regulations. One of the most significant proposed changes would allow accused students to cross-examine their accuser through an advocate in a live hearing. This is a marked change from current standard practice where most campus sexual assault investigations are conducted by a single investigator who typically meets with involved parties separately, examines the facts, and issues a determination without requiring the parties to engage with each other. While ED states that the change will ensure more transparency and due process protections for all students, sexual assault victims’ advocacy groups have expressed concern that the change will have a chilling effect on incident reporting. Questions have also been raised by the legal community about the potential for campus hearings to turn into courtroom trial-like events where students and institutions may not be on equal footing in their ability to either obtain or provide hearing advocates for each party.
Other major changes proposed would significantly reduce a college or university’s obligations to report and investigate allegations of campus sexual assault. Institutions would only be responsible for investigating misconduct that occurred on campus or within an institution-sanctioned program. The rules would also only require investigations in “actual knowledge” cases where a misconduct report is made to an institution’s designated official; under the Obama-era guidance, institutions were responsible for looking into misconduct that came to the attention of any university employee.
The proposal would also allow institutions to set their own evidentiary standards for misconduct findings, unlike the Obama administration guidance, which had directed institutions to use a preponderance of the evidence standard. The proposal would allow for mediation or other alternative dispute resolution methods if both parties involved agree.
NACUBO‘s campus sexual assault prevention webpage features resources designed to help institutions comply with Title IX regulations, and it will be updated as the new regulations are amended and ultimately codified. The American Council on Education also has a resource page that offers guidance on the proposed regulations.
Update: The NPRM was officially published in the Federal Register on November 29, 2018. The public now has until January 30, 2019 to comment on the proposal.