DeVos’s New, Controversial Title IX Regulations Offer Limited Definition of Sexual Misconduct, Will Require Witness Cross-Examination at Harvard

After more than a year of reviewing comments on a draft of the new guidelines, U.S. Secretary of Education Betsy DeVos released the highly-anticipated Title IX rule Wednesday.

The new rule narrows the definition of sexual misconduct and imposes new guidelines for schools’ Title IX procedures. Title IX, a law that prohibits discrimination on the basis of sex in educational institutions that receive federal funding, underpins universities’ sexual harassment prevention and adjudication policies across the country.

The new regulations — which were first released as a draft in November 2018 — shift the definition of sexual misconduct to “unwelcome conduct that is so severe, pervasive, and objectively offensive.” Previous Obama-era guidance defined sexual harassment as “unwelcome conduct of a sexual nature” that includes “requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”

The new rule encompasses “all of a school’s education programs or activities,” both on and off campus. However, for a complaint to be addressed under the new policy, the alleged sexual misconduct must have taken place on-campus or, if off-campus, in the context of a school-sponsored activity, building, or event in which the institution has “substantial control.”

Harvard has not clarified how these changes would impact its own Title IX process. Colleges and universities are expected to enforce this rule by August 14.

In a statement released on Wednesday, University President Lawrence S. Bacow said that Harvard will begin looking into complying with these new regulations, while keeping community needs “at the forefront of our efforts.”

“With the issuance of the final rule today, we will begin reviewing the changes that are now law, with careful consideration of the implications for Harvard’s current policy and procedures,” he wrote. “All who call this University home must know that they are welcome and safe.”

Harvard affiliates have expressed concern that these new Title IX laws will undermine that project to cultivate a safe campus environment.

Harvard Law School Professor Janet E. Halley said the double “severe and pervasive” criteria are unreasonably stringent.

“We argued that ‘severe and pervasive’ is very bad, because in the conduct realm, it is too narrow,” she said. “It says ‘if it’s severe but not pervasive, it’s not included in the wrongful conduct. Or if it’s pervasive but not severe.’”

Diane Rosenfeld, a lecturer at HLS, said this policy raises concerns about scope because it limits the jurisdictions of campus Title IX officers. The new rule would not hold schools accountable for addressing off-campus sexual harassment that takes place at non-recognized social organizations.

At Harvard, for example, the new rule would prevent the Title IX Office from investigating complaints about sexual misconduct that takes place at unrecognized off-campus venues like final clubs. A 2016 University-wide sexual climate survey demonstrated a high percentage of sexual assault cases involving Harvard students take place at the clubs.

“You can’t tie schools’ hands in trying to prevent and address sexual assault like that,” Rosenfeld said. “So I expect that these regulations will be challenged.”

Another controversial aspect of DeVos’s new rule is the undertaking of a grievance process that requires a hearing with both parties.

The new DeVos rule requires that, when a formal complaint is filed with a school’s Title IX office, the complaint must first be evaluated by an impartial investigator who will then submit a neutral report for review in a hearing process.

In this live hearing, all witnesses — including both the complainant and respondent parties — can be submitted to cross-examination. Though the hearing must be held in real time with both parties present, the complainant and the respondent may choose to attend remotely.

Under the new guidelines, each question during the cross-examination period must first be vetted by the hearing officials. These regulations also invoke “rape shield” protections used in federal courts, which prevent either party from being asked about their sexual history.

The grievance process outlined in the new rule is distinct from the single-investigator model that the University currently employs. Harvard currently tasks a single investigator with questioning both parties and making a recommendation for a response based on his or her findings. Once the investigator has reached a conclusion, each school’s Administrative Board or equivalent body determines what sanctions may be necessary.

Halley said the new rule reflects standard fairness practices that, if implemented “in good faith,” would adequately protect both complainants and respondents under the new policy. However, she said, there might be a tradeoff between training investigators to be impartial and training them according to trauma-informed practices.

“Some aspects of trauma-informed training are going to not be all right anymore,” Halley said. “Although the theory does recognize trauma-informed training is important, you can’t teach people to believe the complainant first or something like that.”

Rosenfeld said these new grievance proceedings could have a “chilling” effect on victims and discourage them from coming forward.

The new rule puts the “burden of proof” on the school itself and guarantees resources for those who report sexual misconduct, per a Department of Education spokesperson.

“This rule makes it easier and more accessible for any person to report sexual harassment and receive supportive measures (such as class or dorm room reassignments, counseling, or no-contact orders), while respecting each survivor’s choice about whether to participate in a grievance process,” the spokesperson wrote. “During any grievance process, the rule grants both complainants and respondents equally strong, clear procedural protections (such as the right to an advisor, the right to inspect and review evidence, the right to an unbiased decision-maker)."

Beyond moving away from this single-investigator model, Harvard’s Title IX proceedings might also see a shift in the standard of evidence required to determine an instance of sexual misconduct.

Harvard currently uses a “preponderance of the evidence” standard in its Title IX proceedings, as directed under the 2011 “Dear Colleague” letter. The new guidelines allow schools to employ either the “preponderance of the evidence” standard or the more stringent “clear and convincing” standard in Title IX investigations.

While the choice is technically up to the institution, Halley said the policy is strategically designed to push universities to require clear and convincing evidence in their Title IX proceedings now that the option exists, given that faculty might not be amenable to the school adopting a standard of preponderance in evaluating complaints filed against them when a more stringent option is available.

Colby Bruno, senior legal counsel for the Victim Rights Law Center (VRLC), said these policy changes would assume the credibility of the respondent over the complainant.

“These new rules require the presumption of innocence, and thereby, the presumption that an accusing student is lying,” Bruno wrote in an emailed statment. “It is discriminatory to assume this standard for sexual harassment, but not for other types of student misconduct.”

Halley, however, said she thinks it is fair and appropriate for Title IX offices to adopt grievance procedures with live hearings and a standard of clear and convincing evidence. She said such measures are necessary to ensure credibility and accuracy from both parties.

“We should strive for accuracy,” she said. “And a crucial way to do that is to expose both sides to real time questions about the evidence that they’re bringing.”

—Staff writer Isabel L. Isselbacher can be reached at isabel.isselbacher@thecrimson.com. Follow her on Twitter @IsabelLarkin.