By Ashley Alvarez
Secretary of Education Betsy Devos introduced modifications to existing campus sexual discrimination and misconduct regulation, Title IX. Devos’ changes will not only increase support for the accused but also enforce a stricter definition of what constitutes sexual misconduct, as well as give schools more flexibility in how they choose to handle cases of sexual misconduct.
Title IX, the law intended to prevent discrimination based on sex in education programs or activities that receive federal financial assistance, was applied by the Obama administration to recognize cases of sexual misconduct as a form of sexual discrimination.
Devos has stated that the proposed changes aim to create a fairer due process for the complainant and the accused, calling it “a better way forward.”
Proposed regulations include a strictly narrow definition of what constitutes sexual misconduct, the right for advisors from both parties to cross-examine parties involved, and a window for flexibility in a college’s responsibility to investigate cases of sexual misconduct.
Devos said these changes will see to it that “every survivor is taken seriously and that every person accused knows responsibility is not predetermined.”
“It is a serious process for a serious subject,” said Devos. “Survivors often struggle or fail to continue their educations due to emotional and physical suffering in the wake of sexual harassment. Persons accused face the prospect of ruined reputations and derailed educational opportunities when punishments are imposed based on allegations without an impartial fact-finding process. Schools have an obligation to protect all their students from sex discrimination by responding supportively to survivors while giving due process protections to respondents.”
Devos’s proposed regulations attempt to create, “transparency, reliability, and consistency,” in cases of sexual misconduct by implementing narrow criteria as to what constitutes sexual misconduct. The following are the proposed regulations as stated by the “Background and Summary of the Education Departments Proposed Title IX Regulation” document:
(1) A school employee conditioning an educational benefit or service upon a person’s participation in unwelcome sexual conduct (often called quid pro quo harassment); or
(2) unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school’s education program or activity, or
(3) sexual assault as that crime is defined in the Clery Act regulations.
In addition to the limited qualifying window for sexual misconduct, Devos also addresses the point at which a school is obligated to respond. Parameters for a school’s intervention begin when actual knowledge, (allegations) is presented to a Title IX coordinator, teacher, or “an official with authority to take corrective action.”
However, she continues, this is only when and if the alleged harassment occurred “within the schools own program or activity because Title IX by its own text applies to discrimination occurring ‘under any education program or activity’ receiving federal funds.”
Even so, after a school has determined a case to be an act of sexual misconduct Devos specifies that the Supreme Court can only punish a school if they act, “deliberately indifferent.” Thereby giving flexibility to schools to act in a manner that they deem meaningful so long as it is not indifferent.