The release of proposed regulations for Title IX and campus assault, the federal law that prohibits sex and gender-based discrimination in public schools around the country, has caused growing concerns among higher education observers.
The proposed regulations redefine sexual harassment under Title IX and set new standards for how schools should respond to sexual harassment reports and what it means for a student to report the misconduct.
“Throughout this process, my focus was, is, and always will be on ensuring that every student can learn in a safe and nurturing environment,” said U.S. Secretary of Education Betsy DeVos. “That starts with having clear policies and fair processes that every student can rely on. Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined.”
Some of the proposed Title IX regulations establishes a more narrow definition of sexual harassment. In order for a school to respond to a report, the sexual assault had to have occurred in the United States (outlawing study abroad programs). Additionally, the school must have actual knowledge of the alleged harassment and the alleged harassment must involve conduct that happened within the school’s own program or activity.
The proposed regulations would also require schools to respond fairly and meaningfully to all reports of sexual harassment and provide supportive measures to victims; and permit cross-examination between both parties through an adviser after a report has been filed.
Many schools do not have this cross examination process in effect, which would place a significant administrative burden on the schools and would require additional staff training that could be very expensive, said Bisi Okubadejo, a lawyer at Ballard Spahr LLP, adding that the process could also potentially dissuade some students from making reports if they believe there will be an examination portion during the resolution process.
In addition, if one or both parties are unable to secure an adviser, one would be assigned to them, which would be significant if the proposed regulations are adopted, said Dr. Shafiqa Ahmadi, associate professor of clinical education at University of Southern California at Rossier and co-director for the Center for Education, Identity and Social Justice.
