New school year brings new sexual harassment and assault regulations

Universities and K-12 schools are reworking internal policies on how they comply with new sexual harassment and assault regulations from the U.S. Department of Education. The changes, which fall under the federal Title IX law, go into effect on Aug. 14.

The rules require more more accountability on the part of school administrators and is receiving some pushback.

Kelli Hopkins, associate executive director of the Missouri School Boards Association, said the rules now more narrowly define actual sexual harassment.

The changes were made to protect victims and provide a process that respects the civil liberties of those accused after dozens of high-profile cases over the last several years in which people were wrongly accused and schools trampled the constitutional rights of some students.

“You need four trained people in pretty much what I would call courtroom-level types of process,” Hopkins said. “And we’ve got school districts with two people in the central office. Now there are a set of procedures and requirements about how to investigate, who investigates and who decides whether they did something wrong and what the penalties can be and a whole slew of brand-new ways to do things.”

In announcing the final rule, U.S. Secretary of Education Betsy DeVos stated, “This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process. We can and must continue to fight sexual misconduct in our nation’s schools, and this rule makes certain that the fight continues.”

Key provisions of the new rules:

• Define sexual harassment to include sexual assault, dating violence, domestic violence and stalking, as unlawful discrimination on the basis of sex.
• Require schools to offer survivors support measures, such as class or dorm reassignments or no-contact orders.
• Protect K-12 students by requiring elementary and secondary schools to respond promptly when any school employee has notice of sexual harassment.
• Hold colleges responsible for off-campus sexual harassment at houses owned or under the control of school-sanctioned fraternities and sororities.
• Restore fairness on college and university campuses by upholding all students’ right to written notice of allegations, the right to an advisor and the right to submit, cross-examine, and challenge evidence at a live hearing.
• Shield survivors from having to come face-to-face with the accused during a hearing and from answering questions posed personally by the accused.
• Require schools to select one of two standards of evidence — the preponderance of the evidence standard or the clear-and-convincing evidence standard — and to apply the selected standard evenly to proceedings for all students and employees, including faculty.
• Give schools flexibility to use technology to conduct Title IX investigations and hearings remotely.

The new rules have been attacked by some Democrats, including House Speaker Nancy Pelosi, and some women’s groups but the Brookings Institute says the rules return balance to the system. Civil liberties unions had attacked the previous system and supported a re-writing of the guidelines by the Trump administration.

In recent years, under the previous Title IX sexual harassment rules, kindergarteners were punished for giving hugs on play grounds, college students expelled after rushed and improperly held proceedings administered by one person who served as judge and jury, and some assault victims’ identities were outed.  Experts say there was dismay on all sides.

The administration spent three years re-working the guidelines to address the issues.

“Not only was the Education Department’s rule-making process extraordinarily extensive and its response to comments meticulous, but its final rules return to the legal framework established by the Supreme Court over two decades ago,” the institute writes.

–Dwight Widaman | Metro Voice