Critics of the new Title IX guidelines contend that these changes give the accused “more rights” in sexual assault and misconduct investigations on college campuses.
That much is true. What’s left unsaid, however, is that the accused aren’t getting more rights than the victims. They simply are given due process that was absent from previous guidance for colleges and universities that enforce the federal law prohibiting gender discrimination, known as Title IX.
In 2011, the Obama administration sent “dear colleague” letters that sought to clarify the investigation process, including a loose definition of harassment as “unwelcome conduct of a sexual nature.” The end result of this vague wording was not clarity but a move toward Kafkaesque tribunals and a tendency to begin with a presumption of guilt.
Six years later, U.S. Education Secretary Betsy DeVos made it a priority to restore balance and fairness to Title IX investigations. The new guidelines, which take effect Aug. 14, do just that.
Universities will use the Supreme Court’s more narrow definition of harassment. Misconduct must fall under certain categories, including actions “so severe, pervasive and objectively offensive” that it “denies a person equal access to a school’s education program or activity.” An action is considered harassment if “reasonable” people would agree.
This means a student can’t be punished for saying something crude or stupid.
Most critically, investigations begin with a presumption of innocence, which is a bedrock principle of the criminal justice system. The accused will have the right to see the evidence collected against them and will be able to cross-examine the victim, though that can be done virtually or through intermediaries.
After receiving more than 124,000 comments, the new rules soften some of the earlier proposals regarding Title IX changes, including a previous version that would have limited investigations to the confines of campus. The new rules will apply to school programs or activities off campus, including fraternity and sorority houses. Allegations of stalking, domestic violence and dating violence must be investigated.
Also, schools will not be blocked from taking any interim measures to protect students reporting sexual misconduct.
We probably haven’t heard the end of this. Advocates for sexual assault victims already plan legal action. Joe Biden, the presumptive Democratic nominee for president, said he would repeal the rules. You heard that right.
They fail to see that you can at least try to have it both ways. You can protect victims, investigate claims and ensure that the accused get what amounts to a day in court before being run off campus. These rules news strike the right balance.