ANALYZING The Department of Education’s Final Title IX Rules On Sexual Misconduct
On May 6, 2020, the Department of Education released its long-awaited Title IX rules on sexual harassment. This was the culmination of a process that began nearly three years ago. The regulations were immediately condemned by a number of women’s advocacy groups and by leading Democrats. The rules have already been challenged in court. Federal judges are unlikely to find the regulations “arbitrary and capricious.” Not only was the Education Department’s rulemaking process extraordinarily extensive and its response to comments meticulous, but its final rules return to the legal framework established by the Supreme Court over two decades ago.
In 1998 and 1999, the Supreme Court handed down two key Title IX decisions that established the context for the current debate: Gebser v. Lago Vista Independent School District and Davis v. Monroe County Board of Education. Editorials in the Los Angeles Times and Wall Street Journal have praised the department for “curbing some of the excesses of the previous system” and making “university kangaroo courts a thing of the past.”
Students and employees accused of misconduct must be presumed innocent until proven guilty. That means not only that schools bear the burden of proof in disciplinary hearings, but also that pre-hearing accommodations cannot place a heavier burden on the respondent than on the complainant. To ensure impartiality, decision-makers cannot be employees of the Title IX coordinator. The materials used to train investigators and decision-makers must be available on the school’s website.
The new regulations require that all school rules governing sexual harassment proceedings and all the training provided by the Title IX coordinate be “gender neutral,” free of any “sex bias” or “sex stereotyping.” While this might seem obvious, it conflicts with the frequently repeated view that investigators and decision-makers should “believe the victim” and that “trauma-informed” training requires them to disregard inconsistencies in complainants’ stories. According to the new rules, from the outset complainants should not be considered any more credible than respondents. Any investigator or decision-maker who questions this equivalence cannot be considered “impartial.”
Protecting freedom of speech is a major theme in the Department of Education’s justification for its regulations. The agency claimed that “evidence that broadly and loosely worded anti-harassment policies have infringed upon constitutionally protected speech and academic freedom is widely available.” To address this problem, the department has attempted to steer a middle path between the Supreme Court’s narrow definition of sexual harassment and the Obama administration’s more expansive understanding.
The Department of Education deserves credit for going through a transparent, time-consuming, and rigorous rulemaking process and respecting the Supreme Court’s interpretation of Title IX.
brookings.edu-Shep Melnick
