The U.S. Department of Education has released new rules that reshape how schools must conduct Title IX investigations into campus sexual harassment and assault. The new regulations, which will go into effect on Aug. 14, bolster the rights of those accused of sexual misconduct and limit the types of cases educational institutions are required to investigate.
The new rules most notably mandate live cross-examination during hearings and narrow the behavior that schools must investigate with a new definition of sexual harassment. The rules also reduce the locations and circumstances for which a school has responsibility to investigate, such as off-campus housing. They also allow schools to use a higher standard of evidence in their sexual misconduct investigations, an option that has been available since 2017 but no schools have adopted.
The change will have a profound effect on Boston College’s investigatory process, which currently utilizes a pair of investigators rather than a hearing in which both parties may engage in cross-examination.
Despite the reduction in scope of Title IX investigations, BC will continue to address discriminatory and harassing behavior that no longer falls under Title IX, according to Associate Vice President for Student Affairs and Student Title IX Coordinator Melinda Stoops. Behavior that previously would have been covered under Title IX policy may now be investigated through the Office of Student Conduct, Stoops said.
“Since we have not begun to review and revise our policies in response to the new regulations, I can’t say exactly what this will look like,” Stoops added in an email to The Heights. “However, I can say that we still maintain high expectations for our students’ behavior and I anticipate that our conduct policy would allow for complaints of sexual violence that don’t fall under the new definition for Title IX incidents.”
Stoops declined to comment on how the cross-examination mandate may influence whether students decide to report sexual violence.
Title IX mandates that no one may be denied equal access to “any education program or activity receiving Federal financial assistance” on the basis of sex. Educational institutions that receive federal funds, or recipient schools, are required to comply with Title IX of the Education Amendments Act of 1972 through regulations determined by the DOE.
The new rules mark a major shift from the last decade of campus sexual assault policy, which began with the Obama administration’s 2011 “Dear Colleague” Letter. Those guidelines reinterpreted enforcement of Title IX to allow the federal government to dictate how colleges must investigate and adjudicate sexual assault cases. The Obama administration reaffirmed and clarified the Dear Colleague Letter guidelines in 2014. These changes mandated a lower standard of evidence, allowed for appeals of “not responsible” findings, and discouraged cross-examination.
Secretary of Education Betsy DeVos rescinded both documents in September 2017, saying that the rules “ignored notice and comment requirements, created a system that lacked basic elements of due process, and failed to ensure fundamental fairness,” according to a Department of Education press release.
In November 2018, DeVos released a proposal detailing a number of changes as to how the Department of Education would interpret Title IX and began a period of public comment. The new regulations released last week represent the product of 124,000 comments and, having gone through the comment and review process, will carry the force of law, according to a DOE release.
On a call with reporters, DeVos characterized the new policies as fixing the Obama-era “kangaroo courts” that deprived accused students of due process rights, according to the Associated Press.
During the comment period, the Association of Independent Colleges and Universities in Massachusetts—of which BC is a member institution—voiced concern that the rules would deter victims from reporting sexual violence. The Undergraduate Government of BC joined other student governments in opposing the proposal as well.
The new regulations have been the subject of similar criticism over the past week. U.S. Representatives Bobby Scott and Jerrold Nadler, who chair the House of Representatives Committee on Education and Labor and the Committee on the Judiciary, respectively, said in a joint statement the rules would erode student safety and make it harder for survivors to get justice.
The American Civil Liberties Union opposed parts of the new rules as well, suing the Department of Education on behalf of victims of sexual assault. The group specifically criticized the reduced definition of sexual harassment, the higher available standard of evidence, and the lack of an obligation to investigate off-campus behavior. The ACLU commended the requirements for a live hearing and cross-examination.
Other groups, such as the college civil liberties group Foundation for Individual Rights in Education (FIRE), credited the new rules as a victory for due process rights on campus.
“Sexual misconduct is a gravely serious offense for which the punishment must be substantial,” FIRE senior fellow Samantha Harris said in a press release. “The department’s new regulations require schools to provide students with a fundamentally fair process before imposing these life-altering consequences.”
Following the 2011 letter and the 2014 guidelines, almost all colleges adopted one of two investigative models, according to KC Johnson, a Brooklyn College professor who chronicles Title IX litigation. The first model relies on a live hearing in which the two parties—the complainant and the respondent—can submit questions to a third-party panel of school employees who will make the final decision concerning responsibility. The other option, called the single investigator model, has one or two investigators ask questions of the parties, interview witnesses, and collect evidence before compiling a final report and determining responsibility.
Since 2014, BC has used the single investigator model, which has dwindled in popularity across higher education more broadly, according to Johnson. He cited DeVos’ public concern about the model and due process lawsuits against universities as reasons for the growing popularity of live hearing panels. BC’s model allows for students to select outside advisers, though they cannot ask, speak, or formulate answers for students during the interviews with the investigators.
“BC is one of the few schools in the country that’s moved in reverse, from a model that had submitted questions but fairly robust procedural protections for the accused student to the single investigator model,” Johnson said.
The single investigator model does not present accused students with the opportunity to formally suggest or ask desired lines of questioning, relying instead on the judgment of the investigators.
In contrast to the previous guidelines, the newly released rules require specific procedures for schools investigating sexual misconduct. Postsecondary schools must hold live hearings and allow representatives for the accused and accusing students to cross-examine the other party. The rules do not offer guidance on selection of the “decision-makers,” who sit on the panel and make the final finding of responsibility.
Statements from students who do not submit to cross-examination cannot be used in the final determination for responsibility under the new rules, though schools may not use a student’s refusal to participate as evidence against them. The cross-examination may be conducted virtually or in person. At the request of either party, schools may hold in-person hearings with parties in separate rooms using technology to communicate.
Schools must also provide both parties with an adviser for free, if necessary, another change from previous years.
For schools that currently utilize the live hearing model, the new rules offer little disruption—the responsibility of asking questions just shifts from a panel to the parties’ advisers, and the decision-makers can block questions they deem irrelevant, Johnson said.
“So the net result of this change is that these regulations would lead to a bigger procedural change for a school like BC than would be the case for other schools,” Johnson said. “Schools that use [the live hearing model] already will be able to incorporate these regulations relatively smoothly.”
In the new rules, the DOE says that placing both the fact-finding and decision-making functions in one individual or group could lead to early-formed biases that influence the final conclusion. The new rules shift the burden of vetting testimony to the parties’ advisers during cross-examination, separating the decision-makers from the process.
The need for live cross-examination has been the subject of multiple lawsuits against colleges, including BC. In recent years, court rulings in support of live cross-examination have created a patchwork system across the country with different requirements for geographic regions and for public versus private universities.
In the 2019 case Haidak v. University of Massachusetts Amherst, the U.S. Court of Appeals for the First Circuit—which has jurisdiction over Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island—ruled that due process requires some form of real-time cross-examination, which may be performed by a neutral party and not necessarily the accused students or their representatives. Similar rulings in the Sixth Circuit of Appeals and California’s Second District Court of Appeal have required that the cross-examination be conducted by the accused student or their representative.
In a current lawsuit against the University, a BC student-athlete alleged that the single investigator model deprived him of fundamental fairness, citing in part the Haidak ruling and the lack of real-time cross-examination. The First Circuit rejected this particular argument because private schools are not required to provide due process, unlike public schools.
The rules also confirm a 2017 change allowing recipient institutions to raise the standard of evidence from “preponderance of evidence” to the higher “clear and convincing” standard, which means that it is substantially more likely than not that the allegation is true. The Obama administration required schools to adopt the preponderance of evidence standard, which means determining that it is more likely than not that the allegation is true.
The clear and convincing standard has been available for schools to use since the rescindment of the Dear Colleague Letter in 2017, though no colleges have elected to use it, according to Johnson.
The second major change from the Obama-era rules narrows the scope of behavior that schools must investigate with respect to sexual harassment. Under the previous guidelines, sexual harassment included any “unwelcome conduct of a sexual nature,” while the new definition describes behavior that “a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal education access.”
“For those cases that would no longer be considered Title IX cases [due to the reduction in scope], if you look at the BC Student Code of Conduct, you can see that there are other behaviors that are covered,” Stoops said. “So because the [new regulation] narrows the defintition of sexual harassment, there will be more situations that would fall under the general Code of Conduct.”
The new regulations state that the narrower definition is intended to protect speech, “even when speech or expression is offensive.”
In a change from the proposal released in 2018, the new guidelines also explicitly require Title IX investigations for dating violence, sexual assault, stalking, and quid pro quo harassment by a school employee, which consists of offering a favor in exchange for a sexual act.
The new rules also limit the physical bounds of what schools must investigate. Under the Obama-era guidelines, schools had to investigate any behavior that could affect educational processes, including that which occured off campus or in study abroad programs.
Now, schools must only investigate behavior that takes place in locations and circumstances that schools have “substantial control over,” including off-campus buildings belonging to recognized student organizations, a greater jurisdiction than DeVos originally proposed. The rules are limited, however, to the United States—meaning study abroad programs no longer fall under Title IX’s jurisdiction.
Stoops acknowledged that while the regulation might reshape the avenues by which students can seek care from BC, the school will aim to provide the same breadth of coverage.
“If someone is feeling that they’re being harassed or discriminated against or if they’ve been the victim of sexual violence, I don’t want them to think ‘Well is this a Title IX case? Is this not a Title IX case?’” Stoops said. “What I really don’t want to see happen is that people are reluctant to come forward and get help and support because no matter what, we’re going to care for our students. Our policies will look different, and that’s something we’re going to be working on between now and August 14.”
Featured Image by Leo Wang / Heights Staff