Federal Title IX Policy Revisions Bypass Major Hurdle Despite COVID-19 Pandemic

United States Secretary of Education Betsy De Vos’ proposed rule changes to Title IX, the federal policy on sexual misconduct, cleared the Office of Management and Budget (OMB) on March 27. If passed, the changes would force the UC system to overhaul its current sexual misconduct investigation procedures.

The proposed changes mandate a live court-style hearing with cross-examination, among other alterations to the due process by universities. By giving greater importance to presumption of innocence and written notice of allegations, the new policy will narrow the scope of sexual misconduct that can be investigated.

UC San Diego currently utilizes an investigator model; an investigator from the Office for the Prevention of Harassment & Discrimination (OPHD) investigates complaints and analyzes findings to reach a conclusion. These proceedings are conducted within the administrative guidelines set by the University. Currently, hearings are only conducted for appeals.

The new rules would deviate from the current procedures by setting a specific legal framework for university investigations. Unless universities want to subject themselves to a federal investigation or lose funding, all formal harassment reports made to school officials must be investigated. The proposed rules also attempt to narrow the definition of what is considered to be misconduct, arguing that the current rules offer too large of a range that infringes upon academic freedom and free speech.

“Releasing the new rules as schools and universities across the country struggle to respond to COVID-19 would be incredibly irresponsible,” UC Student Regent Hayley Weddle told The Triton. “Regardless of timing, I also remain deeply concerned about the potentially narrowed definition of sexual harassment, and requirement that universities hold live hearings to adjudicate allegations of sexual misconduct.”

Weddle believes that it is important for the UC system to examine the ramifications the policy might have on reportings of sexual assault and the overall well-being of survivors. She emphasized that the UC system must do all that it can to support the campus community, even as the atmosphere of the country becomes increasingly hostile.

“I feel strongly that the proposed rules represent a roll-back of critical Title IX protections,” said Weddle.

The live hearing model with cross-examination remains one of the more controversial aspects of the proposed rules. Intended to champion due process, the model more readily provides the accused an opportunity to address allegations. Critics are wary of what cross-examination could pose for victims and complainants, even though video-conferencing may be allowed and all questioning would be done by an attorney-adjacent individual, because it transforms the proceedings into quasi-legal trials. A major concern is that this would further discourage reporting and be inequitable.

The UC Title IX Student Advisory Board (SAB) submitted a comment to the Federal Register on January 30, 2019 outlining the concerns with the proposed rules, following a statement by UC President Janet Napolitano and Suzanne Taylor, the interim UC systemwide Title IX coordinator.

The SAB letter related concerns with the live-hearing model, stating that, “We are concerned that the imposition of cross-examination reflects an attitude that is skeptical of survivors’ reports under Title IX, is overly prescriptive, and will have a long-lasting devastating impact on survivors and campus adjudications writ large.”

Both documents presented apprehension over the fact that these new rules “bolster protections for the accused at the expense of survivor rights and safety.”

OMB cleared the Title IX regulations with changes. Secretary De Vos now has the ability to publish the amended rules without public review, but they must be approved by Congress first, according to Jake G. Sapp, lawyer and deputy Title IX coordinator at Austin College.

Congress will have 60 days to review the policy, during which any member of Congress can introduce a Joint Resolution of Disapproval. In the event that a Joint Resolution of Disapproval passes both chambers and is signed by the president, the rules pertaining to the resolution would be thrown out. According to Sapp, it is unlikely that a Joint Resolution of Disapproval would be successful.

In a letter dated March 27, 2020, 18 Attorneys General from 17 states and Washington D.C. implored Secretary De Vos, the Department of Education, and OMB to postpone the review and rulemaking process regarding the proposed changes. The letter asked that these proceedings remain paused until all educational institutions are able to respond to the COVID-19 state of emergency.

“It is unfair to impose significant new regulatory burdens that impact students and communities, especially as schools across the country continue to grapple with the COVID-19 pandemic,” said the UC Office of the President in an email on April 7.

Senators Elizabeth Warren, Kirsten Gillibrand, and Patty Murray also addressed a letter to Secretary De Vos on March 31 in strong opposition to the final Title IX rules’ release due to the uncertainty institutions face as they navigate the current crisis.

The American Council of Education, representing approximately 1,700 four-year, two-year, and private institutions also addressed a letter to Secretary De Vos, asking for a delay in these regulation changes. Other organizations, like the National Association of Scholars (NAS) however, are in support of the new Title IX rules’ release, arguing that this time is ideal.

It is uncertain at this time whether these proceedings will continue at their current pace, or if they will be delayed to address concerns over resources being redirected to address COVID-19. The Title IX rules have not been reviewed by Congress, and Secretary DeVos has not motioned to publish them.

Sahana Narayan is an Assistant News Editor for The Triton. You can follow her @saharadesert00.