The AAMC Jan. 30 joined the higher education community in commenting on a Department of Education (ED) proposed rule that would significantly change the requirements for higher education institutions when investigating complaints of sexual harassment [see Washington Highlights, Dec. 14, 2018].
The letter indicates that while there are some elements in the proposed regulations that would be helpful, on balance, the draft rule would do more harm than good. A major concern for the community is the ED’s proposal of a one-size-fits-all judicial-like hearing process that assumes institutions to be a reasonable substitute for criminal investigators and to serve as civil legal systems. The proposed changes include mandating “live hearings” with direct cross-examinations of each party, which the community argues would turn institutions into courtrooms. Other concerns raised in the higher education community letter include requiring institutions to:
- Use clear and convincing evidence or preponderance of evidence as the standard of proof when conducting investigations; and
Dismiss claims that appear to fall outside of Title IX jurisdiction, even if the complaint violates a campus’ code of conduct.
The comments also highlight several areas where the new rule would advance institutional efforts to address sexual harassment, including:
- Provisions allowing survivors more flexibility on how they wish to proceed in their grievance;
Allowing institutions to complete the grievance process within a reasonable amount of time; and
Providing a clear definition of what the ED considers to be sexual harassment for the purposes of Title IX.
A final rule on Title IX is expected from the ED later this year.