Substantial revisions to Title IX federal civil rights law were proposed on November 16 by U. S. Secretary of Education Betsy DeVos. These changes would supersede previous “Dear Colleague” guidance on the federal laws that prohibit discrimination on the basis of sex in education programs or activities that receive federal funding.
The 149-page proposed regulation defines sexual harassment actionable under Title IX to reflect Supreme Court precedent. While the 2011 guidance defined sexual harassment as “unwelcome conduct of a sexual nature,” the new proposal defines it as “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”.
Changes in evidentiary standards are included in the proposed Title IX law. Schools are allowed to choose their standard of evidence – “preponderance of evidence” or “clear and convincing evidence.” Regardless of the standard chosen, the same standard must be applied consistently across campus, including students, faculty and staff.
The proposed law change also directs schools only to investigate complaints if the alleged incidents occurred on campus or other areas overseen by the school, and only if the complaints were reported to certain campus officials with the authority to take action. Obama Administration guidance required that professors or other college employees who were made aware of abuse or harassment to report it.
DeVos has been working on the new proposed rule since Obama-era guidance from 2011 and 2014 was rescinded in late 2017.
After the proposed rule is published in the Federal Register, a sixty-day comment period will be available for members of the public to make suggestions for changes.
The U.S. Department of Education has provided the following regarding proposed changes in Title IX: