NAICU Washington Update

Proposed Title IX Campus Sexual Assault Rules Anticipated Soon

September 11, 2018

Nearly a year after the Department of Education rescinded Obama-era guidance on sexual assault on college campuses and replaced it with interim guidance, the Department is planning to issue new proposed Title IX rules soon. The proposed regulations are expected to provide additional flexibility for institutions of higher education that handle allegations of sexual assault, as well as new protections for students accused of misconduct.

Although the draft text of the regulations is not publicly available, the New York Times received a leaked version of the proposed rules, which were subsequently confirmed in reporting by the Wall Street Journal (subscription required). The details in the story have not been denied by Administration officials and are consistent with the Department’s previous statements regarding its policy priorities on Title IX.  Substantively, the proposed rules reportedly bear many similarities to the interim guidance currently in place.

Key Provisions
Among the reported changes are indications that schools will have more options when it comes to handling claims of sexual misconduct on campus. For example, schools would be allowed to choose between a “preponderance of the evidence” or “clear and convincing evidence” standard when conducting disciplinary hearings, as well as to determine whether to offer mediation services or provide an appeals process. Notably, however, schools would be required to apply whichever evidentiary standard they choose to all types of civil rights complaints.

The proposed rules are also expected to reduce liability for educational institutions and narrow the definition of sexual misconduct. For example, schools would be legally responsible for responding only to conduct that occurs on campus and only to complaints that are reported to school officials who have authority to take corrective measures. Institutions of higher education would also be liable only for claims for which they had “actual knowledge” and to which their investigatory response is “deliberately indifferent” or unreasonable.
Under the proposed rules, new protections would also be available for accused students. For example, such students would be able to gain access to any evidence compiled during the investigation and to cross-examine their accusers. Investigations must be impartial, and both the accuser and the accused could sue an institution for sex discrimination. Like the Obama-era guidance, however, the proposed rules would continue to allow institutions to provide an extensive array of support services to students who are victims of sexual assault, including those students who opt against filing a formal complaint.

Timing and Next Steps
Although the exact timing of the proposed regulations’ release is unclear, the Department has submitted the draft rules to the Office of Management and Budget for final review, and publication may occur as early as this month. It is important to note that, even after the Department eventually releases the proposed rule, it will be quite some time before any changes would take effect.

Title IX is not subject to the negotiated rulemaking requirements of the Higher Education Act, but any proposed rule must undergo a public comment period pursuant to the Administrative Procedure Act. After that period closes, the Department will have to formulate a response to the comments and write the final rule. As a result, the final rule is subject to change, and it will be many months before institutions of higher education will be expected to implement new campus sexual assault requirements.

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