The Trump administration on Friday announced an overhaul to how schools deal with allegations of sexual misconduct, drastically narrowing the pool of complaints that institutions of higher education will be required to investigate under Title IX.
The rules — proposed by Education Secretary Betsy DeVos, who last year rescinded Obama-era guidance related to how schools investigate sexual misconduct — were meant to expand rights for the accused and clarify the role of schools. Among the major proposed regulations, laid out in a 149-page document:
Schools would only be required to investigate allegations of sexual misconduct that occurred on campus properties or were related to school programs.
The definition of what constitutes sexual harassment would be narrowed.
Institutions would use a "live" hearing model with cross-examination allowed.
Schools could codify a higher evidentiary standard.
Groups that advocate for the accused have come out in support of the plan, while advocates for survivors of sexual assault say the regulations would discourage victims from reporting. And while the amended regulations are seen as friendly to institutions of higher education, the Association of Public and Land-grant Universities said in a statement it expects schools will "far exceed what's minimally expected" in Title IX.
The proposed regulations could go into effect within 60 days following a public comment period, though legal scholars expect the provisions will be challenged in court.
Below is a review of the major regulatory changes and their impact on the accusers, the accused, and the schools.
Defining what schools must investigate
Institutions are now off the hook for investigating reports of sexual misconduct that 1) occurred outside their own educational programs or activities and 2) weren't made to the correct school officer.
Paul Apicella, an attorney with Montgomery McCracken Walker & Rhoads who advises schools on Title IX, said the Obama administration encouraged schools to investigate any sexual misconduct report, on or off campus. Apicella said it's unclear what the new regulations mean for fraternities, often recognized by schools as organizations but which routinely operate in privately owned houses.
What it means for accusers: Accusers must know where to report an incident if they want it to be investigated. If the alleged misconduct occurred, for example, at an off-campus party, the school may not be required under Title IX to investigate. That could result in some victims either going to law enforcement or refraining from reporting.
What it means for the accused: Some conduct that occurs off-campus wouldn't be subject to a required investigation by a school.
What it means for institutions: Apicella said if institutions aren't required under Title IX to investigate some off-campus incidents of sexual misconduct, many won't.
"When you live in a world of limited resources, where university budgets are tightening," said Apicella, a former Title IX administrator at Pennsylvania State University, "when they don't have to address that kind of conduct, what's going to happen is it's going to be harder and harder to convince senior administration to devote resources necessary."
A new definition of sexual harassment
Under the Obama administration, sexual harassment was defined as "unwelcome conduct of a sexual nature." The new regulation would define sexual harassment as "unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it denies a person access to the school's education program or activity." This definition is now aligned with how the Supreme Court defined sexual harassment as it relates to Title IX protections in private litigation.
What it means for accusers: The American Association of University Women said in a statement that the new definition "could exclude much of the abuse students experience." The proposed regulations do encourage schools to provide "supportive measures," including counseling, to affected students.
What it means for the accused: Accused harassers on campuses now face the same standard as workers under federal guidelines related to sexual harassment.
What it means for institutions: Schools could find there are fewer reports of sexual harassment they're required to investigate due to perceived severity.
A switch to ‘live’ hearings and cross-examinations
In a major shift, schools could no longer have an investigator issue a disciplinary decision without an in-person hearing. As part of the hearing, institutions must provide the opportunity for cross-examination. Draft language of the regulations showed officials initially wanted to allow the accused to question the accusers, but the version released would instead delegate that responsibility to hired attorneys or appointed advisers.
What it means for accusers: Victims would be required essentially to testify. Apicella said these provisions may favor the accused, who are often the ones who hire criminal defense attorneys who wouldn't be overseen by a judge or watched by a jury while questioning. He said the perception that one could be grilled by an attorney could cause some victims to refrain from coming forward.
"To put a criminal defense attorney in that situation," he said, "it's going to be like a shark in the water."
Under the provisions, victims would not be forced to be in the same room as the accused. But the accused does have a right to enabling technology to see and hear the accuser answering questions in real time.
What it means for the accused: Groups that advocate for the accused see this as giving them an equal opportunity to review the evidence against them. Rape shield protections are in place, meaning accusers can't be compelled to answer most questions about their sexual history.
What it means for institutions: Colleges and universities may need additional resources to provide for in-person hearings.
Schools can use higher evidentiary standard
Obama-era regulations required schools use a "preponderance of the evidence" standard, the same used in civil litigation, which means the decision-maker must find that it's more likely than not that misconduct occurred. Now, schools will be able to choose to use a higher evidentiary standard requiring "clear and convincing" evidence.
What it means for accusers: If a school used the clear and convincing standard, an accuser would need to clear a higher evidentiary bar, convincing the decision-maker it's substantially more probable the misconduct occurred than not.
What it means for the accused: In the same way, the accused would benefit from such a standard.
What it means for institutions: Schools would have to weigh whether it's in their best interest to change the standard of evidence. Apicella predicted most schools wouldn't change their policies to use a higher evidentiary standard to avoid public outcry.