In November, the U.S. Department of Education released a rewrite of Title IX, a federal civil rights law. This law was passed as a part of the Education Amendments of 1972, which prohibit discrimination on the basis of sex in any education program or activity that receives federal funding.
Under Title IX, discrimination on the basis of sex can include sexual harassment, sexual assault and rape. This means that a college or university that receives federal funds may be held legally responsible when it knowingly ignores sexual harassment within its programs.
The department’s rewrite of Title IX allows schools to decide on what evidence is needed to prove claims of sexual assault and harassment. In addition, it works to strengthen the due process rights of the accused.
From Nov. 29 to Jan. 28, the American public has the opportunity to comment on the new proposed Title IX rules.
Below are the six key proposed provisions that are of high importance and under intense criticism, as presented by NC State’s Title IX open forum that was held Jan. 7 in Talley Student Union.
Definition of Sexual Harassment
Currently under Title IX, in order to give rise to a complaint, sexual harassment must be sufficiently severe, persistent or pervasive, according to the law. It must also affect a student's education or create a hostile educational environment.
However, with the new proposed legislation, sexual harassment would have to be severe, pervasive and objectively offensive, according to the Department of Education.
In addition, according to information from the Office for Institutional Equity and Diversity (OIED) at NC State, sexual harassment could be defined as “quid pro quo” harassment, which is when an authority figure offers something in return for a sexual demand, or can fit under the Clery Act’s definition of sexual assault, which includes rape, statutory rape, fondling or incest.
If a sexual assault survivor does not meet these requirements, they will have to terminate their report under Title IX. However, their report could still be under effect within their school’s policy of sexual assault and harassment.
According to the proposed provision, schools would be required to respond to harassment that occurs within the school’s own program or activity. Many critics are worried that this provision implies that off-campus conduct won’t fit in the definition of sexual harassment.
Currently, according to Betsy Lanzen, a member of the Office of General Counsel and a speaker at the forum, the law states that if off-campus sexual harassment has an impact on campus, then an institution is obligated to investigate the on-campus impact. However, with the new provision, this obligation may be erased.
Lanzen also stated that this requirement only applies to conduct in the United States. This means a student who experiences sexual assault while on a Study Abroad program cannot report under Title IX, since it is out of jurisdiction.
Currently, according to Title IX, a university is obligated to respond to a Title IX complaint if a responsible employee, one who has authority to take action to redress sexual harassment, knew or should have known about the sexual harassment.
According to the OIED, the proposed provision states that the university is obligated to respond to the complaint if the university has actual knowledge of sexual assault allegations.
Under the provision, according to Thomas Hardiman, director of the Office of Student Conduct and a speaker at the forum, stated that actual knowledge is defined as a written and signed formal complaint describing the allegations. It must be given to the Title IX coordinator or a university official with authority in the matter.
Live Hearing and Cross-Examination
Cross examinations, a formal interrogation of witness, are currently allowed, but not required under Title IX. However, under the proposed provision, schools must offer a live hearing and a cross-examination of parties and witnesses.
According to the OIED, during the cross-examination, questions regarding a survivor’s past sexual history, except in some circumstances establishing consent, are prohibited. The examinations must also be conducted by an advisor of choice (attorney, emotional support person, etc.), and the parties can be in separate rooms.
Standard of Evidence
Title IX currently states that parties may either use a clear and convincing evidence standard or preponderance of evidence, meaning that a party has shown that its version of facts is more likely than not to be true.
The U.S. Department of Education has proposed that the standard of evidence used can be either clear and convincing or preponderance. However, according to the OIED, preponderance of evidence can only be used if the same standard is used for all charges which have the same maximum penalties. This standard of evidence must apply for all students and even a school’s employees.
Informal Resolutions and Mediation
According to the OIED, this proposal would be an entirely new aspect to Title IX, if passed. This proposal would allow and encourage informal resolutions, like mediation, if the process occurs prior to a final hearing, is voluntary and is agreed to in writing by both parties.
Students who are interested in commenting on the provisions can visit the Federal eRulemaking Portal. In addition, the Women’s Center is hosting a Title IX Comment-Writing Party on Jan. 14 from 7 to 8 p.m.