On August 29, The New York Times obtained a copy of the proposed rules for Title IX changes that the Trump administration plans to enforce. In a story which promptly launched a debate over how Title IX should be interpreted, the Times laid out the leaked rules and what they could entail for both accusers and the accused. Due to the fact that these rules have not been officially announced, the Education Department refused to comment on the story. Furthermore, once the rules are announced, there will be a period of public comment that could potentially change any of the current rules. That being said, as it stands now, this is a breakdown of how the Trump administration plans to revise Title IX interpretations.
The leaked new rules generally are in opposition to Obama-era regulations regarding sexual assault on campuses and Title IX procedures. Title IX, in general, prohibits discrimination in education on the basis of sex. However, over the years this has been used to cover the area of sexual misconduct as well. The part of the law that covers sex-based discrimination will remain largely unchanged in these new rules—for the most part, the rules address the way sexual misconduct is handled and processed.
In 2011, the Obama administration issued a “Dear Colleague" letter which, though not legally binding, issued guidance on how schools should handle Title IX cases, lest they risk losing federal funding. This letter was generally treated as a law by colleges and universities, even though it held no real legal power. Last fall, DeVos formally rescinded that letter. The Trump administration’s proposed changes to Title IX rules, however, would be legally binding and do not need to be voted on by Congress.
The new proposed rules, as reported by The New York Times, would adopt a new definition of sexual harassment compared to the Obama administration; under Obama, it was defined as “unwelcome conduct of a sexual nature," including “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature." The new rules from the Education Department change this definition of sexual harassment to “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity." Thus, the proposed new definition would create a much higher standard for what is categorized as sexual harassment.
Additionally, the proposed rules would only hold schools accountable for formal complaints and for conduct which took place on their campuses. For example, an instance of sexual harassment which is reported to a Resident Assistant would not be covered under the new rules—it would have to be reported to an investigator or school official. Furthermore, if the misconduct occurred off campus, the school does not need to conduct an investigation, and it is not their responsibility to address the complaint. Legally, institutions would only be responsible for investigating complaints that they have knowledge of happening. If the school is unaware of a complaint because it hasn’t been formally made, they are not legally responsible for addressing it.
Schools will also be allowed to choose their evidentiary standard for Title IX cases under the new rules; what this essentially means is that the school can choose to have a higher standard for evidence of assault when determining if the accused party is responsible. So the evidentiary standard will no longer be set at the federal level, but left up to the schools to decide. The new rules would also recommend using mediation to resolve disputes, having the accuser and accused come to a resolution without going to court. Furthermore, the Trump administration recommends that the accuser and accused cross examine one another, which the Obama administration discouraged for fear that it would escalate the situation and be uncomfortable or traumatizing for the victim.
Finally, the new rules say that unfair or inadequate treatment of the accused could also be considered sex discrimination. Critics of the new proposed rules say that this will provide more protections to the accused. Those in favor of the new rules say that these revisions will prevent false accusations, as well as preventing Title IX cases from dragging on and hurting both the accuser and accused in the process. Until the official new proposal is released later this year, however, Title IX’s future interpretations will be left to speculation.