Education Secretary Betsy DeVos formally announced the new rules related to Title IX—the federal statute that governs sexual misconduct in schools—thus completing a process that began more than a year ago, when the government first unveiled its proposed changes. The new rules aim to protect victims of sexual misconduct while also establishing fairer procedures for the accused. The department believes the new rules will “balance the scales of justice on campuses across America.”

Justin Dillon, an attorney who specializes in campus misconduct adjudication, hailed the new rules as tremendously well thought out. “Nothing Betsy DeVos has done since she took office will have a more lasting effect on people’s lives than this. It’s frankly inspiring to see how hard she and her staff have worked to get these regulations done and get them right.”

The new rules are similar to what the Department of Education proposed in November 2018. Most notably, the government has abolished the single-investigator model, which previously permitted a sole university official to investigate an accusation of misconduct, decide which evidence to consider, and produce a report recommending an outcome. Under the new rules, the final decision maker must be a different person than the investigator, and a finding of responsibility can only be rendered after a hearing in which a representative for the accused is able to pose questions to the accuser—i.e., cross-examination.

Importantly, the new rules narrow the scope of actionable sexual harassment to exclude conduct that ought to be protected under the First Amendment. “This new rule strikes a powerful blow against campus censorship,” said a Department of Education spokesperson. “Campus free speech must not be sacrificed in the misguided pursuit of any other value.”

It remains to be seen whether colleges and universities will carefully follow the new rules—much is uncertain about the future of higher education right now. Nevertheless, today is a big day for the restoration of basic due process and free speech rights in schools.

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Advocates for free speech and due process on campus won one of their biggest-ever victories today with the finalization of long-awaited new Department of Education Title IX regulations.  The regulations guarantee critical due process protections that Americans recognize as essential to securing justice, but that have for too long been denied to students accused of sexual misconduct on college campuses. The regulations also include important protections for student free speech rights. “For nearly a decade, FIRE led the charge to introduce fairness to campus proceedings, first nearly alone, then with a growing number of allies,” said FIRE Executive Director Robert Shibley. “Today, we won an important victory. But our work is not over. We will continue to fight to ensure that students are afforded the rights now guaranteed to them when they return to campus this fall.”

Among the procedural protections guaranteed by the new regulations are:

• An express presumption of innocence;
• live hearings with cross-examination conducted by an advisor of choice, who may be an attorney;
• sufficient time and information — including access to evidence — to prepare for interviews and a hearing; 
• impartial investigators and decision-makers;
• a requirement that all relevant evidence receive an objective evaluation.

The regulations also affirm institutions’ ability to use the “clear and convincing” standard of evidence, which the government previously forced schools to abandon in 2011 for the lower “preponderance” standard in sexual misconduct cases.

Finally, the regulations define “sexual harassment” as it was defined by the Supreme Court of the United States in Davis v. Monroe County Board of Education (1999). This definition provides a clear path for institutions to respond to allegations of misconduct while also protecting students’ expressive rights.

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