This is the top story from our daily newsletter published on August 14, 2020. To have this and more delivered directly to your inbox scroll down and enter your email or click here to sign up. Cover: Betsy DeVos, CC BY-SA 2.0, Gage Skidmore.
New Back to School Rules: Nearly half-a-century ago the United States passed the Higher Education Amendments of 1972. The legislation is best known for Title IX, which prohibits discrimination on the basis of sex in educational institutions receiving federal aid. Title IX has “become a flash point in recent years after sexual assault cases rocked high-profile universities like Stanford and Duke, and serial sex abuse by staff at the University of Southern California, Michigan State and Ohio State demonstrated how schools had failed to properly investigate complaints,” Erica L. Green writes for the New York Times. “But enforcement of the law has also grown contentious, especially since the Obama administration issued a ‘Dear Colleague’ letter of 2011 and supplementary policy clarification in 2014 that advised schools to ramp up investigations of misconduct and warned that their failure to do so could bring serious consequences.” Legal practitioners for Law.com write that this “piecemeal guidance” was exactly that: guidance. Meaning it was never “legally binding,” which led to mixed interpretations and messy proceedings. This past May, Education Secretary Betsy DeVos “issued final regulations on sexual misconduct in education, delivering colleges and schools firm new rules on how they must deal with one of the biggest issues that have roiled their campuses for decades.” These rules take effect today. Rather than a right-left comparison, we will highlight what supporters and opponents are saying about the new regulations based on the most high-profile changes:
Change #1: The Definition of Sexual Harassment. In the Obama administration’s 2011 “Dear Colleague” letter, sexual harassment was defined as “unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. Sexual violence is a form of sexual harassment prohibited by Title IX.” The new regulations adopt the Supreme Court’s definition of sexual harassment as “unwelcome conduct that is severe, pervasive and objectively offensive.”
- Opponents: Law.com notes that the “DOE has received harsh criticism for what victims’ advocates perceive as a ‘narrowed’ definition of sexual harassment.” For example, in 2018 Dana Bolger, a co-founder of Know Your IX wrote for the New York Times that “Some courts (though fortunately not all) have said that even a rape does not count under this standard because a one-time act of violence is not ‘pervasive.’ That means a victim of rape (not to mention other less severe forms of sexual misconduct) might never see her school investigate her claims, let alone remedy them.”
- Supporters: Conversely, Robert Shibley argues for the Wall Street Journal that “This is a substantial improvement over the current patchwork of rules, which invite censorship of speech or behavior that is both constitutionally protected and not harassment. In Title IX’s name, colleges over the years have banned what they characterize as ‘derogatory cartoons,’ ‘innuendo’ and ‘sexually suggestive statues.’ Students and professors’ political, academic and artistic speech deserves protection.”
Change #2: Due Process for the Accused. As Ms. Green points out in the New York Times, critics of the Obama Administration’s 2011 guidance “said schools felt pressured to side with accusers without extending sufficient rights to the accused.”
- Supporters: Ms. Green notes that the new “rules require that accused students be given written assurance that they are presumed innocent,” until proven guilty. “They require colleges to hold live hearings during which accusers and accused can be cross-examined to challenge their credibility.” Schools will also now be able to use the higher “clear and convincing evidence” standard rather than the Obama administration’s “preponderance of evidence” standard of proof in determining guilt — sometimes known as “50 percent plus a feather.”
- Opponents: Mr. Green also notes that “dozens of students have [already] won court cases against their colleges for violating their rights under the Obama-era rules.” The LA Times Editorial Board elaborates, saying the Obama-era standard of guilt “is adequate. It is notoriously difficult to prove cases of sexual assault, and there’s no reason for colleges to make that even harder.” Summarized, opponents believe the new rules may disincentivize victims from coming forward.
Change #3: School Responsibility. Obama-era guidelines held that schools could be responsible for failing to address an episode of harassment or assault if they knew or “reasonably should” have known about it. Under the new guidelines, however, schools will be held responsible only if they prove “deliberately indifferent,” Spencer Bokat-Lindell notes for the New York Times.
- Supporters: The Foundation for Individual Rights in Education believes the updated structure will allow accusers to come forward without the fear of setting into motion an entire investigation. “FIRE has heard of cases where an alleged victim chose not to come forward because they wanted their alleged assailant to take responsibility for their wrongdoing, but did not want them branded rapists or expelled. By granting students the autonomy to decide how to proceed, the regulations again restore Title IX’s focus on ensuring equal educational access.”
- Opponents: Conversely, critics claim that the new rules will let schools off the hook too easily. For example, Cassandra Negley of Yahoo Sports writes that the previous guidelines made “coaches, athletic directors and other institutional team personnel mandatory reporters. The same [went] for faculty, athletic directors, residential life staff, etc. They [were] required to report any instance of sexual misconduct or sexual discrimination to the Title IX office or appropriate school officials. There [did] not need to be a formal complaint to do so. This stipulation is what has gotten many coaches and institutions into trouble in high-profile cases. Michigan State was fined $4.5 million in September for its mishandling of abuse claims against Larry Nassar.” Negley believes that under the new regulations, someone like Nassar might be able to fall through the cracks, unreported.
Flag This: This is a loaded topic and quite frankly the three changes we highlighted above are only the tip of the iceberg. On multiple sites, both right and left, there appeared to be somewhat of a consensus that the new rules were good from the standpoint that there is now a more concrete framework rather than just guidelines. However, not everyone agrees with the updates. The authors on Law.com say “As legal practitioners, we believe the final regulations, while not perfect, represent a step in the right direction for Title IX.” A final important takeaway is that these new directives could be temporary. The Wall Street Journal notes that the rules “could be vulnerable to being overturned by the Congressional Review Act if Democrats run Congress and the White House next year.” Without opining on this exact issue, the takeaway from our perspective is that being an informed voter matters. When you cast your ballot in November, you’re not simply casting it for a certain personality, although that’s what the media tends to focus on. You’re also casting it for concrete policy decisions. We’ll keep doing our best to be an educational resource that highlights both sides of important debates.