Title IX in Brief

...the definition of sexual harassment isn’t met.

The Department of Education narrowed the definition of sexual harassment to be “so severe, pervasive, and objectively offensive” that it effectively denies a person access to the school’s education program or activity” adding that conduct could be harassment if “a reasonable person” would say it was.

Students will have to endure a repetitive levels of sexual violence for schools to take their case seriously. Further, schools are mandated to discuss complaints that do not meet the sexual harassment definition, even if the allegations are proven true, therefore setting a new precent for institutions to not take cases of sexual violence seriously.

...an incident takes place outside of the school’s “educational program or activity”.

Previously, schools were obligated to investigate incidents of sexual harassment, regardless of where the incident took place. Under the new rule, schools will be required to dismiss all complaints of sexual harassment that occurs outside of the school’s “educational program or activity”, where the school has “substantial control” over both the respondent and the context of the incident, or those that occur in a building owned or controlled by a student organization that is officially recognized by the school.

...a formal written complaint isn’t submitted.

Schools are only obligated to investigate incidents of sexual harassment filed through a formal process and brought to the attention of the Title IX Coordinator to take corrective action. The complaint can be filed by a student (or their parent/guardian, if appropriate) or signed by the Title IX coordinator. The Title IX Coordinator can choose to file a complaint on their own, even if a student decides not to file one.

...live, cross-examination hearings that are re-traumatizing.

Required schools to use live cross-examination, a harmful tactic that will further traumatize students survivors and have their credibility be questioned. Under this new provision, the Department is requiring schools to hold live, in-person or virtual, hearings and to provide both parties with an advisor, unless they already have an “advisor of choice” and allows the accused to face their accuser. By having an advisor of choice, there is no clear indication on who this could be and it doesn’t have to be a lawyer. What we do know is that the accuser themselves can not be the one to question the survivor. But it could be anyone of their choice, further exacerbating bias and traumatizing student survivors.

...unnecessary delays on investigations and process overall.

Previously, schools were recommended to finish investigations within 60-days. The new rules discarded this timeframe and allowed schools to delay their own Title IX investigations for an unspecified period of time, if there is an ongoing investigation. The new rule ignores the fact that schools are required to conduct their own investigations, independent of the police.

…"preponderance of the evidence" vs. "clear and convincing" standard of evidence.

Previously, schools were mandated to use the “preponderance of evidence” standard, which means that the evidence provided is “more likely than not to be true”. Now, under the new rule, schools can choose between “preponderance of evidence” and “clear and convincing” standard, which is a higher standard where evidence provided is “highly and substantially more likely than not to be true”. If a complaint is made against a school employee, some employee’s agreements include collective bargaining that requires using the “clear and convincing” standard. Therefore, schools will then be required to use the “clear and convincing” standard moving forward with all its investigations. So, whichever one they choose, they have to move forward with that specific burden of proof in all of their investigations.

...a presumption of innocence.

Schools are required to give accused students written assurance that they are presumed innocent unless otherwise found culpable through a formal investigative and adjudicative process. This would mean that schools won’t not be able to take any form of disciplinary action against an accused student until the end of a case, but have the right to remove an accused student from campus if they are considered to be an ongoing threat to campus safety.

…allowing student-on-student mediation.

Previously, schools were not allowed to use mediation to resolve sexual assault because this method would presume that both parties share responsibility for the assault, allow accused to pressure survivors into inappropriate resolutions, and because it would allow direct interaction between the assailant and survivor. Under the new rule, students will be able to use student-on-student mediation.

…minimizing meaningful supportive measures for student survivors.

Supportive measures include changes to student’s academic schedule, housing accommodations/assignments, counseling services, tutoring services, excused absences or changes in assignments and tests. Under the new rule, schools will be prohibited from providing supportive measures that are deemed “disciplinary”, “punitive,”, or are “unreasonably burdensome” to the other party.

…claiming religious exemption.

Under the new rule, schools will not be required to claim a religious exemption from Title IX from the Department of Education or give students or their families any notice that they are claiming religious exemption, before they engage in sex discrimination. Schools can claim exemption after they are already under investigation for violating Title IX.