CHANGES to Universities’ Sexual Assault Tribunals May Be Here to Stay
On November 29, the 60-day public comment period opened for Title IX regulations proposed by U.S. Depart. of Education Secretary Betsy DeVos. Three features distinguish DeVos’s proposed regulations from the Title IX initiatives of her Obama-era predecessors. 1st. The proposed rule would redefine the relationship between the Education Department’s Office for Civil Rights (OCR) and the nation’s universities, in ways that give schools more flexibility to implement Title IX. The regulations would adopt the U.S. Supreme Court’s definition of sexual harassment found in Davis v. Monroe County Board of Education. 2nd. The proposed regulations would no longer require schools to adjudicate some off-campus claims. However, the published proposal notes that courts have deemed fraternities as covered under Title IX, suggesting that universities would need to adjudicate incidents that occur even at off-campus fraternities. 3rd. The proposed regulations would reduce the number of employees whose knowledge of a sexual misconduct allegation would require the university to initiate an investigation.
In theory, these are substantial changes—in practice, however, they are likely to have scant effect. If the definitional items in the proposed rules will not likely change much in institutions’ decisions about whether to adjudicate sexual assault allegations, the proposed rule would dramatically alter how colleges adjudicate.
DeVos opting for new Title IX regulation rather than TIX guidance has two major advantages. First, in recent years, progressive activists and Democratic legislators have championed an approach to Title IX that encourages more reporting of campus sexual assault allegations at the expense of fairer investigative and adjudicative procedures. It seems certain that the next Democratic administration will hope to restore Obama-era Title IX principles. A Title IX guidance document issued by DeVos would lack lasting force; however Title IX regulations, will be more difficult to overturn. Second, and perhaps more important, Title IX regulations likely would require adherence, albeit very reluctantly, from universities.
theregreview By KC Johnson
