Report: Title IX Rule Would Limit Liability of Colleges

August 30, 2018

A proposed rule dealing with campus sexual misconduct would narrow the definition of sexual harassment and only hold colleges accountable for investigating formal complaints, according to a report Wednesday in The New York Times. The Wall Street Journal separately reported details of the proposal.

The rule would also require institutions to only investigate incidents on campus or from campus-sponsored activities. And it would also allow colleges to set their own standard of evidence for determining misconduct by accused students and would narrow the definition of sexual harassment, the Times reports. 

The Education Department called the report premature. But many details reported by the Times -- such as discretion for campuses to set their own standard of evidence -- reflect temporary guidance issued by Education Secretary Betsy DeVos last year.

DeVos said at the time that she would craft a new federal regulation to replace guidance issued by the Obama administration in 2011 and 2014 on colleges' responsibility to investigate and adjudicate sexual misconduct on campus. It will be the first time the Education Department has issued regulation, which has the force of law, rather than guidance documents on Title IX.

"Schools must continue to confront these horrific crimes and behaviors head-on. There will be no more sweeping them under the rug. But the process also must be fair and impartial, giving everyone more confidence in its outcomes," DeVos said last year.

Under the Obama guidance, colleges were directed to investigate complaints of misconduct whether they occurred on or off campus. And they were directed to use what's known as a preponderance of evidence standard to reach findings in campus proceedings, which sets a lower burden of proof than the clear and convincing standard advocated by many critics of the Obama administration's approach.

According to the Times report, the rule would explicitly state that an institution's treatment of an accused student could constitute sex discrimination just as treatment of a complainant could.

Democratic lawmakers and women's advocacy groups responded to the report Wednesday by saying DeVos had rejected the concerns of survivors.

“It’s shameful and appalling that Secretary DeVos is still considering issuing a rule would make it harder for students to seek justice if they’ve been sexually assaulted on campus," said Senator Patty Murray, a Washington Democrat and the ranking member on the Senate education committee.

But Liz Hill, a spokeswoman for the department, said the administration is "in the midst of a deliberative process."

"Any information The New York Times claims to have is premature and speculative and therefore we have no comment," she said.

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