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AAMC Joins Higher Education Response to Department of Education Title IX Proposed Rule

February 8, 2019

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Matthew Shick, Sr. Director, Gov't Relations & Regulatory Affairs
Brett Roude, Legislative Analyst

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.

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