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Featured Image for What Is The Deal With Title IX Proposed Rule Changes?

You may have heard there are changes on the horizon for Title IX, the federal law protecting students’ rights to educational opportunities and benefits free from sex discrimination. Title IX regulations outline responsibilities for any school (K-12 and higher education) receiving federal funding and penalizes schools that respond to sexual harassment in a way that amounts to subjecting a student to sex discrimination.

Because Title IX regulations play an important role in addressing sexual harassment, sexual assault, and intimate partner violence in schools, SCCADVASA has highlighted some of the key points in the proposed rules and how they could apply to campuses in particular. We’ll be breaking things down in a three-part series this week.

Key Changes Proposed:

  • Narrowing the definition of sexual harassment actionable under Title IX,

  • Limiting situations when schools are responsible for taking action (see blog post part 3),

  • Limiting circumstances when a school is considered to have knowledge of harassment and therefore responsible for further action,

  • Allowing live cross examination, but only by the party’s “advisor,”

  • Allowing schools to change the required standard of evidence (see blog post part 2),

  • Removing time limits on investigations.

If you have questions about other proposed changes or would like more information about any of the changes listed above, feel free to call SCCADVASA at 803-256-2900.

Do you have thoughts on how this will impact your work or the students you support?

These rules are currently in the public comment period and not yet final. Schools and victim advocates do not need to make any changes at this point, but may want to consider the implications of these rules for their institution, for people experiencing abuse, and for those accused of perpetrating abuse.

The comment period runs through January 28th. After that time, the Department of Education will have to respond to all substantive comments and explain why they did or did not make changes. The final rules are expected to be released sometime during or after spring of 2019.

You can leave a comment until January 28, 2019. You may comment as an individual or on behalf of an organization or institution.

To read the full text and/or provide comment, go to https://www.regulations.gov/document?D=ED-2018-OCR-0064-0001 and click the button that says “comment now.” (Or go to www.regulations.gov and search for Docket ED-2018-OCR-0064-0001.)

For information on the value of providing comments and advice on how to write an effective comment, see this resource from Know Your IX: https://www.knowyourix.org/notice-comment-2018/submit-a-comment/

Know  Your IX also created a data guide with statistics to support your comment: https://actionnetwork.org/user_files/user_files/000/028/106/original/Mini_Data_Guide_(N_C).pdf

 

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Featured Image for Title IX Proposed Rule Changes and Standards of Evidence

One of the biggest talking points around proposed changes to Title IX is the standard of evidence used to determine misconduct. Debates over the appropriate standard of evidence weigh the potential impacts, especially educational impacts, on the survivor/complainant and the accused/respondent, attempting to find a fair balance in survivors’ rights and needs and the rights and due process for someone who is accused.

Prior guidance required schools to decide cases using the “preponderance of the evidence” standard, meaning that the school found it was more likely than not that the sexual harassment or assault occurred. Institutions were prohibited from using the higher “clear and convincing evidence” standard, which required a finding that the harassment was highly probable or reasonably certain to have occurred.

The proposed regulations now require schools to use the clear and convincing standard for sexual harassment and assault unless the school can show that it uses the lower preponderance of the evidence standard for other misconduct violations carrying the same maximum penalty (e.g. potential expulsion from school).

On the flip side, and causing concern for some victim advocacy organizations, a school may choose to use the clear and convincing standard for sexual assault cases even if other violations with the same maximum penalty still use the lower preponderance of evidence standard.

In addition, the new rules require schools to use the same standard of evidence in faculty and student cases.  Because faculty tenure policies and union contracts are often less flexible, schools may realign Title IX policies to match those policies, rather than the other way around.

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Featured Image for  Title IX Proposed Rule Changes

What situations would initiate a school’s legal responsibility to address sexual harassment or abuse?

In considering the purview of Title IX policies, a common question for schools might be, “Am I responsible for doing something about that particular situation?” The complicated dynamics of sexual harassment and assault mean that an incident happening outside of school activities could still impact a student’s access to educational opportunities, which is the ultimate focus of Title IX. Rules on Title IX must therefore determine what is within the scope of a school’s responsibility, which can be a balancing act between concern for protecting students’ access to education and concern over putting too much responsibility on the school through too broad of a scope for Title IX.

Under previous guidance, there was an obligation for schools to respond even if the initial sexual harassment occurred outside the school’s education program or activity if there was potential impact to a student’s education and engagement with school activities.

Under the new proposed regulations, institutions are required to respond only when they have “actual knowledge of sexual harassment in an education program or activity.” This would include activities sponsored by recognized Greek life organizations and athletics programs. However, an assault happening in off-campus housing or a local bar, for example, would no longer fall under the school’s responsibility, regardless of the potential impact on a student’s education.

The new proposed rule also specifies harassment “against a person in the United States.” This would limit the school’s responsibility to address anything happening in a study abroad program.

Though the focus of this blog series is on higher education, it’s important to also consider the potential impact in K-12 schools. It might be of particular concern to consider sexual harassment or abuse happening to a student outside of school activities (e.g. at a party, online, at a friend’s house), but the student potentially being unable able to seek recourse through their school, despite impacts on their education. (It is important to note that, outside of Title IX requirements, a school can still implement policies for preventing and addressing situations of harassment or abuse in order to protect students and employees.)

SCCADVASA wants to thank NASPA and the other national organizations who have provided briefings on the proposed Title IX rule changes that contributed to our content. We also want to recognize the campus and community-based advocates who continue to support students throughout, and regardless of, policy changes.

For further questions about proposed Title IX changes, please contact SCCADVASA at 803-256-2900.

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