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Press reports say the Department of Education (DOE) is nearly ready to propose new regulations that would define more narrowly how schools and colleges must deal with sexual harassment and discrimination, scaling back the requirements outlined in regulatory guidance offered by the Obama administration in 2011 and again in 2014.

A front-page New York Times story on August 30 reported DOE was getting ready to propose Title IX rules (the Wall Street Journal added DOE plans to issue its proposal as soon as September), and will take public comment on its proposals. The Obama administration, despite its earlier policy guidance lacking the force of law, in a widely criticized “Dear Colleague” letter, threatened to cut off federal funds to schools which did not comply with its policy preferences.

In September last year, Secretary of Education Betsy DeVos rescinded DOE’s 2011 guidance, which critics faulted – among other grounds — for having been issued without DOE taking public comment on its positions. As currently drafted, DOE’s new proposal would make numerous changes in previous Title IX. They would:

  • Make colleges responsible for investigating and take appropriate actions against only formal complaints of sexual harassment or misconduct, which have been brought to an official with the authority to launch enforcement actions, about incidents that occurred on campus or at a campus-sponsored activity.
  • Permit schools to use voluntary mediation, and permit both complainants and accused to access evidence turned up by investigators, and seek evidence from, and cross-examine, each other. A school would also be permitted to provide “supportive measures” (such as counseling, increased security or changes in class schedules or housing assignments) to students who opt not to file a formal complaint.
  • Drop the earlier guidance’s insistence that campus disciplinary proceedings for Title IX complaints use the lower “preponderance of the evidence” standard, rather than a higher standard of “clear and convincing’ proof. Schools would be free to choose to use either standard of evidence
  • Make clear a school’s mistreatment of an accused student, not just of an accuser, could be found to be sex discrimination.
  • Narrow the definition of “sexual harassment” to unwelcome sex-based conduct “so severe, pervasive and objectively offensive” that it denies access to a school’s program or activity.
  • Allow schools to decide whether or not to provide an appeals process for disciplinary decisions. 

 The proposal is being welcomed by critics of Obama-era Title IX interpretations, including some universities which regarded them as overly restrictive and unduly burdensome, but assailed by victims’ advocates and many Democrats. It could be revised before being officially proposed.