NAICU Washington Update

Proposed Title IX Sexual Assault Rule Released

December 03, 2018

The Department of Education has released its long-awaited proposed regulations governing Title IX and campus sexual assault. The new rules appear to offer some additional flexibility and reduced liability for institutions of higher education, while also preserving supportive services for survivors of sexual assault and adding numerous procedural protections for accused students. Although some of these procedural protections may be warranted to assure fairness for accused students, there are also concerns about the impact these new procedural requirements are likely to have on sexual assault survivors and educational institutions alike.
The official Title IX notice of proposed rulemaking (NPRM) was published in the Federal Register on November 29, 2018. The proposed regulations are subject to a 60-day public comment period, which ends on January 28, 2019. After the comment period closes, the Department will respond to the comments and issue final rules, which are likely to differ somewhat from the NPRM.
In many respects, the provisions contained in the NPRM appear to be similar to the interim guidance the Department issued in 2017, when it rescinded Obama-era campus sexual assault guidance. NAICU has prepared a detailed summary of the requirements in the proposed regulations, but some of the key provisions are identified below.
Several requirements in the NPRM are likely to present issues for institutions that are striving to balance the need to provide both a safe and supportive campus and a fair and equitable process for students within the context of an academic environment. For example, many of the new procedural protections that the NPRM would establish for accused students are likely to transform the institutional disciplinary process into a more burdensome legal proceeding and to deter victims of sexual assault on campus from coming forward.
Such requirements include provisions that would: mandate that institutions allow cross-examination and provide advisors to students for purposes of cross-examination; demand that institutions apply the same evidentiary standard to Title IX complaints as they do to employment claims; grant students access to all evidence gathered in an investigation regardless of relevance; exclude conduct that does not occur within the institution’s education program or activity; eliminate the single investigator model; and prescribe numerous detailed requirements related to grievance procedures.
Additional changes in the NPRM are several provisions that would provide a safe harbor for institutions that follow regulatory procedures or implement supportive measures for a victim in the absence of a formal complaint. Institutions are also given increased flexibility with regard to the timing of investigations and the option to offer mediation and appeals.
In addition, the proposed regulations, which would hold institutions responsible only for responding with deliberate indifference to conduct for which they have actual knowledge, may reduce liability for institutions in some respects. Also, religious institutions will not have to submit written requests in order to invoke the religious exemption from Title IX regulations.

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