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Education Department Releases Controversial Campus Sexual Harassment Rule

May 8, 2020

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Brett Roude, Legislative Analyst

The U.S. Department of Education published a final rule on May 6 regarding Title IX campus sexual assault that significantly changes the requirements of institutions to investigate these complaints on their campuses. The new rule will apply to all students, staff, and faculty at an institution effective August 14. 

The final rule narrows the definition of sexual harassment to "unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school's education program or activity," and institutions will be “be found in violation of Title IX if they are ‘deliberately indifferent’ to such conduct.”

The final rule prohibits institutions from investigating misconduct that occurs outside of “a location or under circumstances where the school owned the premises, exercised oversight, supervision or discipline over the location or participants, or funded, sponsored, promoted or endorsed the event or circumstance.”

Before an institution can respond to a claim, the final rule requires “clear and convincing evidence” of misconduct. The department now requires that accused students be given written assurance that they are presumed innocent, and an institution will not be able to impose any disciplinary actions on students accused of misconduct until the end of their investigation.

Finally, the rule includes a mandate of “live hearings” that permits direct court-like cross-examination of both the survivor and the accused by the other party’s advisor. The higher education community, including the AAMC, previously argued that this provision would turn institutions into courtrooms [see Washington Highlights, Feb. 7, 2019].

In March, the AAMC joined national education organizations in asking the department to delay the final Title IX rule during the COVID-19 emergency, noting, “At a time when institutional resources already are stretched thin, colleges and universities should not be asked to divert precious resources away from more critical efforts in order to implement regulations unrelated to this extraordinary crisis.”

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