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Title IX Guidance Changes and Challenges

Title IX, of the Education Amendments of 1972 protects individuals from discrimination and applies to institutions that receive federal assistance. Because the scope applies to state and local level institutions, even state Universities have a responsibility to enforce these regulations and protect it’s students from sexual harassment, misconduct, and assault – and as the country and citizens herein come to understand the nature of assault and harassment, that scope and responsibilities change to better and more appropriately address that understanding. 

However, since 2016, the Secretary of Education Betsy Devos provided evidence that she and the former administration disapproved of 2011 guidance saying that it created an environment for universities to over enforce campus sexual misconduct and led students being unfairly accused and removed from campus. Because of this concern, updated regulations for Title IX were released. The updated regulation for University duty regarding Title IX changes that present the most challenges are a more specific definition of sexual assault, limiting the organizations obligation to investigate to the university’s events or activity, changes in liability, additional grievance procedures, a change in the standard of evidence, as well as how responsibility is determined between the two parties. Lastly, the timing of the changes put the Title IX office in a difficult situation in that it must meet these new requirements in a time of increased complaints and pandemic-related budget and logistical restrictions. 

The narrowing of definition for sexual misconduct limits an organization’s ability to address misconduct and assault. This primary change strikes at the foundation of what Title IX is meant to do: protect students and ensure a safe environment. One definition utilizes Justice Davis’ definition as “Severe and pervasive and objectively offensive conduct, effectively denying a person equal educational access” (italics my own) creating a barrier if the accusation does not meet all three criteria and increasing the severity of misconduct needed to take action.

In the past, guidance stated that universities should use the preponderance of the evidence standard to determine guilt and to base decisions on the most convincing evidence. The new regulations allow that same standard or the much more difficult “clear and convincing standard” burden of proof. This more difficult burden of proof could require more cross-examination creating undue stress to the victim and related parties. Not only would the process require intense fact-gathering, but could deter victims from coming forward effectively stripping the power of the university to help it’s student population. 

These changes, seemingly born out of a concern that the accused are not receiving fair treatment, are serious changes that limit the way universities can help their student body. It creates additional barriers to an already stressful or traumatizing situation. The challenges presented for the Title IX office would include more skilled and creative investigative work, more personable and empathetic communication with the parties involved, and ensure the parties understand what or who is available to them and what the office’s duty is to them.

Header art is: William Hogarth‘s The Settlement, 1742-1744


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