Betsy DeVos released long-awaited Title IX regulations Friday morning. The new rules are largely in line with the draft regulations leaked late this summer that suggested a new emphasis on due process for those accused of sexual misconduct and a correction for overreach during the Obama years. Crucially, they lower the controversial “preponderance of evidence” standard that had been in effect from a requirement to an option, just as stakeholders expected.
They also require administrators to notify students of precisely what accusations they’re facing or precipitating. DeVos met with victims’ rights activists and advocates for accused students last year. It’s clear that their concerns helped shape the administration’s new policy. The adjudication process that grew out of the Obama administration’s successive “Dear Colleague” letters concerning sexual assault on campus too often left students, on both sides of an accusation, in the dark about the scope and consequences of a complaint.
Under the new rules, colleges must give students the right to cross-examine each other, as well as any assembled witnesses, through an advisor. Recent court decisions also inform the structure of DeVos’s new regulations: “Indeed, at least one federal circuit court has held that in the
Title IX context cross-examination is not just a wise policy, but is a Constitutional
requirement of Due Process,” the proposed rule reads, citing the relevant case law.
Among other key provisions to help narrow and clarify campuses’ responsibility for adjudicating sexual misconduct claims, this cross-examination and advisor permission stands out to attorney Margaret Valois, who advises students—usually men—accused of sexual assault.
Per the new rules, a student without an advisor must be provided one. Whereas, under the Obama-era regulations, “I’m not allowed to talk,” said Valois, whose role in hearings is limited in most states to note-passing and whispered advice to her client. “Some schools even prohibit any kind of communication between an advisee and advisor,” she added.
This new provision, which will allow advisors like Valois to ask questions in hearings, is also a win for accusers, she explains. “A lot of the time, they’re alone,” she says, recalling just one case out of many in which an accuser had an attorney present.
The process is invariably complex, time-consuming and emotionally draining. An accused student is more likely than an accuser to know he’s going to need advice, while an accuser may tend to believe the system will support her. The existing Title IX training ingrains a systemic bias toward viewing accusers as victims, but students on both sides of these investigations are invariably ill-equipped to navigate a devastating process.
The new regulations also require “actual knowledge” to trigger an investigation. A formal report will need to be based on more than hearsay or repeated claims. In a mandatory reporter system, a secondhand whisper could be enough to trigger an investigation. Now, actual knowledge of the alleged misconduct will have to precede the Title IX process.
Still, the most profound change—and perhaps the least likely for most schools to follow—is the one everyone saw coming. In the temporarily guidelines DeVos set in place after rescinding the “Dear Colleague” Letters, she made the preponderance of evidence standard optional. Rather than requiring schools to use a higher standard for Title IX proceedings, the new rules mandate simply that the same standard apply to all disciplinary decisions—for students, faculty, and staff—that could lead to dismissal.
Valois predicts that schools will defy the regulations, leading to more lawsuits from Title IX accusers and accused students both” “A lot of them will continue to do what they’ve been doing until they end up in court,” she says. One thing’s for sure: To see lasting reform in Title IX adjudication, she adds, “The climate’s going to have to change.”
