Education Department Poised To Change Course on Regulations of Sexual Misconduct Investigations

September 5, 2018Alerts Education Alert

School administrations are bracing for potentially big changes during this back-to-school season. The U.S. Department of Education may soon introduce regulations reshaping how schools address sexual misconduct.

The New York Times reportedly obtained draft rules that would provide greater protections to those accused of sexual misconduct.

To many, the rule changes come as no surprise in light of the Department’s rescission of its 2011 “Dear Colleague” letter, which was issued under the Obama administration and reflected that administration’s complainant-friendly approach to these issues under Title IX.

Unlike the Obama administration’s approach, which provided guidelines only, these proposed rules will have the force of law if put into effect, after a public comment period. The Department of Education responded that deliberations remain ongoing, however, and any reporting is “premature and speculative” as revisions are possible. Nevertheless, these proposed rules reflect some of the views of the current administration on these important issues.

According to the Times, some of the proposed policies include the following:

Narrower definition of sexual harassment
The proposed regulations define sexual harassment to be “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.” The prior administration defined sexual harassment more broadly as “unwelcome conduct of a sexual nature,” that included “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.” Further, unlike the prior guidelines, the proposed rules do not define “hostile environment,” although they do give schools the power to remove the accused from campus after a safety and risk assessment.

More school control over process
Schools may choose between two evidentiary standards for evaluating alleged misconduct – either the “preponderance of the evidence” or the stricter “clear and convincing evidence” standard. The Obama administration mandated the lower preponderance of the evidence standard when deciding whether the accused should be disciplined or expelled. The new proposed rules also leave it up to the school to decide whether to have an appeal process. The Obama guidelines recommended an appeal process.

Greater due process protection
The new rules allow the victim and the accused to request evidence from each other. They also have access to any evidence obtained during the investigation, even if the evidence may not be used to prove the case. Critically, the victim and accused may cross-examine each other. The Obama guidelines strongly discouraged parties from personally questioning each other during hearings.

Promoting informal resolution
The proposed regulations permit parties to engage in mediation to reach informal resolutions. The last administration held mediation was not appropriate, even if voluntary.

Less school liability
Several proposals would limit school liability in connection with sexual misconduct cases:

  • First, schools will only be held legally responsible for investigating formal complaints and responding to reports that school officials have “actual knowledge” of happening. A formal complaint is one made to “an official who has authority to institute corrective measures,” not for instance, a residential adviser in a dormitory. This differs with the standard (dating back to 2001) that a school “knows, or reasonably should know, about possible harassment.” Schools complained this standard held them accountable for allegations of which they were not aware. 
  • Second, a new standard would apply in determining whether a school took proper steps to address allegations – a “deliberately indifferent” standard. The rules define this to mean an institution is in violation of the law “only if its response to the sexual harassment is clearly unreasonable in light of known circumstances.”
  • Third, schools will only be responsible for investigating episodes that have taken place within their own programs or on their own campuses, not, for instance, at off-campus parties. The prior administration required investigations regardless of where the conduct occurred.
  • Fourth, the government will not penalize schools that provide “supportive measures” to victims who choose to forgo filing a written complaint. The proposed regulations promote measures that provide “nondisciplinary individualized services” and are “nonpunitive, time-limited and narrowly tailored” to keep students in school. The rules include a list of options – counseling, deadline extensions, changes in class schedules, campus escort services, mutual restrictions on contact between the parties, changes in housing, leaves of absences or increased security and monitoring.

Potentially more school liability
While the measures noted above appear to limit liability, the administration, for the first time, explicitly states an institution’s treatment of the accused could constitute sex discrimination, not just the treatment of the complainant. All investigations must treat the accused as presumed innocent until proven guilty.

Some are celebrating the possible rule changes, asserting they will restore due process protections. Others insist the changes will dismantle progress towards making schools safer, including reducing reports of sexual misconduct.

Although details remain uncertain, there is no doubt that the debate will escalate once the Department publicizes its rule changes and opens the floor to public comment.

These regulations represent a significant shift in the government’s approach to sexual misconduct cases. If put into effect, they may have a profound impact on many of the policies currently in place at higher education institutions. Fox will continue to monitor these developments for its higher education clients.