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The Education Department's New Title IX Rules Have Been Revealed. Here's What They Say.

They require that "due process protections are in place for individuals accused of sexual harassment."

BDOliver Contreras/picture alliance / Consolidated/NewscomUnder new rules pertaining to Title IX, the federal statute that forbids sex discrimination in education, the Education Department will clarify that school officials must adopt procedures that protect students from harassment while still guaranteeing due process rights for the accused.

That's according to a draft of the proposed rules obtained by Reason. Previously, I reported on some aspects of the new rules after speaking with an Education Department official. I have now read the full proposal: a 120-page document that is "intended to promote the purpose of Title IX by requiring recipients to address sexual harassment, assisting and protecting victims of sexual harassment and ensuring that due process protections are in place for individuals accused of sexual harassment."

The new rules make one thing abundantly clear: Those who claimed this move by Education Secretary Betsy DeVos represented some kind of attack on women were wildly off-base. You would have to actively prefer that Title IX adjudication be unfair for accused students in order to find significant fault with what the Education Department is about to do. And yet representatives of Know Your IX, an activist group that serves alleged victims of campus sexual assault, claimed that, having read the rules, they believe "they're worse than we could have imagined."

"These draft rules put the safety of students at risk," the group declared on Twitter.

This is an absurd mischaracterization of the document, which you can read for yourself here.

In summary, the new rules offer a workable definition of sexual harassment, explain the circumstances in which school officials are obligated to respond to accusations, and establish "procedural safeguard" to protect both the accuser and the accused.

The rules are explicit about the problems with the previous guidance, which was improperly issued without notice or public comment and is thus "sub-regulatory" in nature, meaning institutions can't be sure they actually have to follow it. With these new rules, DeVos is following proper procedure and actually asking stakeholders to give their opinion. (The copy of the rules I saw, for instance, had initially been sent to the Department of Health and Human Services for feedback.)

Sexual harassment is defined as unwanted sexual conduct that is so severe and pervasive that it effectively denies the victim the right to an equal education. But it is also defined as sexual assault, and as quid-pro-quo harassment, in which something is offered in exchange for sexual favors. Previous guidance "exceeded the text of the statute by requiring institutions to respond to conduct less severe than that proscribed by Title IX," the new rules state. The new rules also make clear that universities are only obliged to investigate possible Title IX infringements that are actually reported to a relevant administrator.

One of the most praiseworthy aspects of the proposal is the mandate to train Title IX adjudicators using unbiased materials that do not "rely on sex stereotypes and instead must promote impartial investigations." Title IX officials must also make training materials available for accused students to peruse, which means that underlying bias could be made more evident.

The new rules also state that universities may terminate the adjudication process if, having learned of an allegation, it is determined that "the conduct alleged by the complainant would not constitute sexual harassment." This could probably be stronger: Perhaps officials should be specifically directed not to continue investigating if no actual sexual harassment claim consistent with the definition outlined above has been stated.

During adjudication, both parties must have equal opportunity to present evidence, propose witnesses, and consult advisors of their choice. However, the universities may establish restrictions "regarding the extent to which the advisor may participate in the proceedings," as long as these restrictions are equitable. This strikes me as an area that could use further improvement, given the Sixth Circuit's recent finding that a representative of the accused should be able to question the accuser if the university thinks direct cross-examination would too traumatizing. It's not clear to me if the Education Department is saying that universities should be able to block representatives from doing so.

Indeed, the cross-examination aspect of the new rules is very interesting, and establishes an important right: The complainant and respondent must be afforded equal opportunity to pose questions to each other and to witnesses. But universities are not obligated to hold hearing at all; if the school uses an adjudication model that does not involve a hearing, then an effective substitute for due process will suffice. Universities "must permit each party to provide written questions for the investigator to ask the other party and witnesses." KC Johnson is concerned that this might actually prompt victims' rights activists to pressure colleges to abolish hearings entirely.

The new rules depart from previous guidance relating to the burden of proof: Schools are no longer obliged to use a preponderance-of-the-evidence standard, and may instead use a clear-and-convincing standard. But it is doubtful that many will do so.

The new rules also give universities more flexibility when it comes to appeals. The Obama administration's 2011 Title IX guidance required universities to permit both parties to appeal verdicts. This requirement would no longer be in place, and schools would be free to allow appeals for just the accused, for both parties, or for no one.

Those are just some highlights; there are many more details in the document. Its authors note that if implemented, these new rules would save about $300 or $400 million in compliance costs over the next 10 years. But the real benefit here isn't financial in nature: It's that students accused of sexual misconduct will no longer face adjudicatory policies that are stacked against them from the outset.

Contrary to what the activists have claimed, these rules make sensible and rather mild changes. It's ludicrous to asset that they go too far. It's more likely that they don't go far enough, and that the Education Departments attempt's to remedy due-process deficiencies on campus will fail to overcome the systemic biases of a bureaucratic system under constant pressure to always and automatically believe the victim.

Photo Credit: Oliver Contreras/picture alliance / Consolidated/Newscom

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  • Red Tony||

    So I checked out that twitter page. It added evidence to support my theory that everyone is retards.

  • wreckinball||

    I'm glad the "rules" follow due process but isn't sexual assault already against the "rules" aka laws?

    Why do we need another set of rules and a parallel justice system? Lets just stick with one of each.

    If you are sexually assassinated go to the police.

  • lap83||

    " sexually assassinated"
    That sounds like the work of Steve Smith. I don't think the police are equipped to help

  • wreckinball||

    LOL good catch. Assault will do . Assassination is a little extreme.

  • Last of the Shitlords||

    Sexual Assasin was my nickname in kindergarten.

  • HANSENWT||

    that can't be good for your Supreme Court nomination.

  • ||

    I'm glad the "rules" follow due process but isn't sexual assault already against the "rules" aka laws?

    Similar occurred to me as well. Isn't these people giving 'due process' the old college try what got us into this mess in the first place?

  • MoreFreedom||

    Under Obama universities didn't give the accused any due process. Far better that alleged sexual harassment by students (note no student has power over another such as the ability to hire/fire/expel them from the university) be handled by the police.

    I agree with wreckinball, the universities shouldn't be involved in crime by students, until they are convicted at which point they should be free to expel them. Universities can and should be involved in sexual harassment allegations against those employed by the university, just as any business is. That would eliminate huge highly overpaid administrative departments of people employed to deal with this issue; thus reducing the cost of an education, rather than government forcing students to pay more for illiberal values. DeVos is acting like a RINO, agreeing to more administratively crated semi-government than necessary provided they are in control, rather than leaving crime to the police who should be handling such allegations. Due process already exists in the court system. There's no need for university police and courts.

  • DPICM||

    Death . . . by unga bunga!

  • Curt||

    "Why do we need another set of rules and a parallel justice system? Lets just stick with one of each."

    We need another set of rules because the standard of proof is much weaker and (even after these changes) the accused get less due process protection. That is exactly why the parallel justice system developed. It's hard to prove (beyond a reasonable doubt) that someone broke one of these rules/laws (especially when they are afforded due process). So why bother? Instead, we can set up a separate system where we can easily "prove" people are guilty without allowing them to defend themselves.

    How could you possibly object to that? It's almost like you're some kind of monster who wants these rapists to remain free.

  • OpenBordersLiberal-tarian||

    Breaking news! The Kavanaugh #MeToo bombshell is even more serious than we thought!

    A woman alleged to two democrats that, during high school, Brett Kavanaugh held her down and attempted to force himself on her, placing a hand over her mouth and turning up music to conceal her protests.

    Clearly the confirmation vote should be delayed. We simply cannot allow this monster to join the Supreme Court with an issue of this magnitude still unresolved.

    #CancelKavanaugh
    #Resist

  • wreckinball||

    The dumbness continues. See a shrink please.

  • Eddy||

    He's actually trying to mock the Democrats with satire, but the problem is it's hard to tell the difference.

  • Nardz||

    Pretty sure it's, almost word for word, a recent press release from planned parenthood

  • ||

    The link to the Farrow tweet is real.

  • JesseAz||

    The story Farrow recounts is most likely not.

  • Get To Da Chippah||

    Brett Kavanaugh raped the same person who clued Harry Reid in about Mitt Romney's taxes.

  • Last of the Shitlords||

    Held her down and covered mouth while he raped her? Bill Clinton calls that Tuesday night.

  • HANSENWT||

    You are exactly the reason why Devos (and huge credit to her in noting that there is little anyone accused can do when cases are decided on innuendo and rumor and everything else.....lets take Kavanaugh at face value from your argument...you have already decided he is guilty of something....but you are applying today's political environment and MeToo to 1980's environment...and we don't even know a) what happened b)if anything happened c)outcome if it did. So how much weight do we want to put on political smears. But MeToo has been very successful...I believe they "Roy Moore'd" this. Ultimately lets actually assume we find out what is being said is claimed by the victim and we find him guilty under public opinion. Whatever is officially claimed was done, will it have been illegal or anything the police would have moved on in 1983. Then if they did and found him guilty under juvenile sexual assault or more likely from sounds of it some kind of misdemeanor inappropriateness...but if they adjudicated it in juvenile court (wasn't a lot of adult conviction escalation back then). His record would have been declared sealed....so end state, he more then likely would not have been charged, if he was, would probably been adjudicated of a lesser charge in juvenile proceedings. He would have still become a judge and the precedent law would be that this could not be held against him. Court of public opinion has run amok!

  • HANSENWT||

    By the way, when I was in High School (graduated 1983)...some forms of "physical sexual assault" (today) would have been considered nothing more then "jerk" or inappropriate behavior by even the victim at the time, the perpetrator, and if in school and she complained the individual might gotten a talking too and it would need to be pretty extreme to get detention (might have had police on campus twice in four years for anything). That is why all of this should be irrelevant when discussing cases where both the victim and perp at the time would probably have considered this inappropriate behavior since it did not lead anywhere else. That is what both were taught and what the public environment on these things considered. It is wrong to assume that because the victim now considers this different does not mean the perp also hasn't learned as well with the transformation of society (this was before "sexual harassment".

  • Rockabilly||

    Chuck Schumer grabbed my Johnson, without permission, when I was a bell hop at the Marriott in New York.

    I've been ashamed to say this until now.

  • lap83||

    "You would have to actively prefer that Title IX adjudication be unfair for accused students in order to find significant fault with what the Education Department is about to do"

    No, that's what women in general prefer. Don't look at me, I'm just the brave messenger speaking on behalf of those poor souls in hopes they will return the favor somehow. /sjw douche

  • JoeJoetheIdiotCircusBoy||

    Agreed. Let's no forget that the reason these kangaroo courts sprung up on college campuses to begin with is because fair adjudication (i.e., the legal system...well, ideally fair) typically sides with the defendant in "he said-she said" cases.

  • josh||

    "typically sides with the defendant in "he said-she said" cases."

    Of course, the obvious reason why that's the case is because there is usually obvious reasonable doubt in such cases. Which is why there's the push to insist that no women EVER lies, and any suggestion of due process is just a smokescreen to rape these women all over again.

  • HANSENWT||

    The problem is that the law should take the "kangaroo" out of the "kangaroo" courts...if processes can be abused they will be abused by anyone no matter what vantage. When abuse becomes two unidirectional, then adjustments should be made to bring the processes more neutral. Simple questions (which some colleges are just now considering and I was on to this when "date rape" was invented)....If a woman cannot be of capacity to say yes under any influence of alcohol and possibly still even legal to drive etc....why does the law assume a man is under any capacity to say yes or be an intentional perpetrator of said crime even though he drank just as much or is same % if that helps.....there are two many cases of regretted one night stands for example that have gone to Campus Kangaroo courts....it's worse when a women who is wronged at some point later but knows she holds the cards to that initial one night stand when she seeks revenge for who knows what.....see "Mattress Girl". Bottomline the process of justice is actually supposed to be in favor of the accused on all matters..."beyond the shadow of a doubt"....once we went away from that...everyone sets their own standard.

  • loveconstitution1789||

    Refer rape cases to police.

    Otherwise, leave young adults alone. As a college you cannot possibly exercise Due Process in an unbiased manner as you are not equipped to do so. That is what courts are for.

  • Eddy||

    Now, to be fair, we're comparing the defective campus trials to a real-world system which rarely holds trials at all, due to the pressure for plea-bargains (whether you did it or not).

    Yes, an innocent person may be incentivized to turn down the offered plea and go to trial...unless of course they think that's too risky and get browbeaten into admitting a lesser charge (or accepting a lesser sentence) to avoid the risk of wrongful conviction and personal bankruptcy.

  • Nardz||

    And Eddy points out the biggest problem with our judicial system, and it's completely ignored by criminal justice reform activists/advocates.

    Perhaps they don't really give a shit about due process, especially if it touches on lawyers.

  • Cyto||

    There's more to it than rape.

    If I were in charge of a campus, I would surely refer all criminal matters to the police. Doing otherwise really makes no sense.

    But there are non-criminal forms of harassment that could create an environment that deprives a woman (or women) of their right to an education. Run the clock back to 1947 at an almost exclusively male college and a woman might expect cat-calls and jeers throughout her day. That sort of harassment is certainly under the Title IX umbrella and should rightly be stamped out, should it rear its head.

    One could also easily imagine professors or TA's who either use their position for sexual favors or harbor personal biases against women. I'm not sure that there's a crime there, but it sure would hamper equal access to education.

    The current large state school environment of 60% women really doesn't match that sort of "denied equal access" model though. It has been a female dominated environment for at least 30 years, so I'm not exactly sure what the point of all of the spending on Title IX compliance is.

  • HANSENWT||

    Title IX and Federal Sexual Harassment Laws would affect your "favors for sex" standard and is wrong regardless of who what where and that has been addressed, gotten better...does it exist, probably...but that is directly bearing on the given school to feret out, address, and refer to local authority if a crime.....The environment should be maintained conducive to everyone, not based on sex, race, sexuality etc....It is usually not the law that creates the bias, people do, and it is wrong whether bias helps or hurts the victim and/or the perpetrator. As long as two humans coexist in a given space, inappropriate behavior will minimally happen regardless of race, sex, sexuality....but how do we define inappropriate behavior and who defines? Should the victim be allowed to define any and all behavior? Should intent matter (it used to and not just "words of intent")? Should we be allowed to redefine inappropriate behavior vs criminal behavior vs civil behavior arbitrarily and apply it to would be perpetrators who would not even have the vantage of reasonable assumption? Should we be allowed to apply retroactively after acceptance? Should we legislate harshly against natural human behavior or should we allow one sex, race, etc...determine what natural human behavior is.

  • Cyto||

    You would have to actively prefer that Title IX adjudication be unfair for accused students in order to find significant fault with what the Education Department is about to do. And yet representatives of Know Your IX, an activist group that serves alleged victims of campus sexual assault, claimed that, having read the rules, they believe "they're worse than we could have imagined."

    Written as if there was some conflict or contradiction between those two sentences. In an "always believe the accuser" world, methinks not.

  • Jerry B.||

    "You would have to actively prefer that Title IX adjudication be unfair for accused students in order to find significant fault with what the Education Department is about to do."

    Well, since that's the way it worked under the Obama Administration, Democrats consider that settled law.

  • Sevo||

    "You would have to actively prefer that Title IX adjudication be unfair for accused students in order to find significant fault with what the Education Department is about to do."

    Or, you could simply note that the amendment is proposed by a Trump appointee, and ignore any of the content.
    But the first is no problem, either. "Justice" is what SJWs say it is, neither more nor less.

  • Cyto||

    They certainly do spend a lot of time redefining terms and creating new terms in order to frame the debate such that there can be no real debate.

  • Sevo||

    One of the newer low-watt bulbs in the earlier 'let's be nice to socialists' thread claimed the 'modern' socialists just wanted more transparency, but then admitted, as if it were adding fries to your burger order, that 'they might want the government to enforce it'(!)
    The handle was female, so, no lady, everything before you final sentence is so much window-dressing.
    Fuck off, slaver (not you).

  • Last of the Shitlords||

    I should go back to school for another degree. I can go to state university in WA for around $2k per year since I was in Desert Storm. I should pick one that is likely to be stupid enough to give me a jackpot legal settlement when I trick them into violating my civil rights.

    It shouldn't take much for those progtards to take the bait.

  • Rockabilly||

    Is kissing no longer a crime?

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