Saturday, September 26, 2020

DOE changes Title IX regulations, mandates university cross-examination

May 6, 2020
Betsy DeVos. Photo courtesy of the U.S. Department of Education.
Betsy DeVos. Photo courtesy of the U.S. Department of Education. —

U.S. Secretary of Education Betsy DeVos created new Title IX provisions for sexual misconduct cases on college campuses, according to a statement from the U.S. Department of Education.

The final rules codify how DeVos initially approached her role in reshaping university sexual assault policy. The policy goes into effect Aug. 14, according to the 2000-page unofficial draft.

Most notably, the new provisions require universities to evaluate cross-examination sessions based on two different standards of evidence they can choose to apply.

Schools can choose to apply the preponderance of evidence standard that requires a greater than 50% chance a claim is true or the clear and convincing evidence standard, which requires a greater burden of proof that an allegation is true, according to the Cornell Law School.

According to statement from the DOE, the standard of evidence chosen by the university is required to be applied to all students and employees.

These new regulations are aimed to treat sexual misconduct complaints seriously while ensuring that guilt is not predetermined for accused perpetrators, according to the statement.

The new regulations also require colleges to provide supportive measures such as class or dorm reassignments. They also hold campuses accountable for houses "owned or under the control of school-sanctioned fraternities and sororities," according to the release.

The institutions must also uphold "all students' right to written notice of allegations, the right to an advisor, and the right to submit, cross-examine, and challenge evidence at a live hearing," according to the statement.

Michigan State's entanglement with Title IX

The release specifically mentions Michigan State University, which has levied with a record $4.5 million fine in September for excessive violations of the Clery Act.

MSU continues to be heavily involved in Title IX lawsuits.

Most recently, a former MSU sprinter has sued the university for failure to enforce sexual assault regulations.

The suit was filed as part of a broad set of lawsuits against the NCAA involving at least two other institutions, alleging a failure to uphold Title IX regulations after she was sexually assaulted in March 2017.

MSU lawyers recently moved to dismiss one Title IX lawsuit after another was dismissed against Michigan State in December.

The DOE's new regulations define sexual harassment as "severe, pervasive, and objectively offensive," which could dismiss Title IX lawsuits without repeated harassment by a perpetrator.

Sage Wood, who enrolled at MSU in 2015, filed a lawsuit in November 2019 alleging MSU faculty dissuaded her from reporting instances of sexual assault twice.

In December 2019, a separate Title IX case was dismissed, filed by four MSU alumni, alleging lack of adequate response from university officials. That case was dismissed because the court determined action cannot be taken against MSU without proof of extended harassment from the perpetrator.

Overall, the new regulations seek to provide for both colleges and universities, as well as students and survivors of sexual misconduct.

Provisions also include a flexibility to use technology in Title IX investigations and hearings, shields survivors from coming face-to-face with the accused perpetrator at hearings and requires universities to provide clear options for any person reporting sexual misconduct, among others, according to the statement.

"Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault," DeVos said in the statement. "This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process. We can and must continue to fight sexual misconduct in our nation's schools, and this rule makes certain that fight continues."

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