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Criminal Attorney Oklahoma Defense Lawyer Adam R. Banner OKLAHOMA CRIMINAL DEFENSE ATTORNEY AT LAW

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New DOE Guidelines Proposed for Title IX

Adam Banner - Friday, November 30, 2018

 

Dept. of Education Addresses Sexual Assault at Colleges

It’s been 46 years since Congress passed Title IX of the Education Amendments Act of 1972 and sent it to the White House President Richard Nixon signature. The law’s provisions prohibit sexual discrimination at colleges and universities receiving federal funding. For some, it became synonymous with the fight to prevent schools from favoring men’s athletic teams and programs to the detriment of those available to women.

A few months ago, the U.S. Department of Education made the announcement that they would move forward with proposing amendments. I wrote an article regarding that development at the time. Now, the new proposed amendments have been released, and they detail new regulations for schools regarding sexual assault and misconduct allegations. The announcement potentially illustrates another broad application of the law. The new guidelines would affect how school administrators handle complaints on campus. The announcement has drawn its fair share of criticism (and praise), even before the guidelines go into effect, due to their emphasis on due process rights of those accused of misconduct.

Scope of Title IX and a lack of guidelines

Title IX affects more than just colleges and universities receiving federal funding. State and local school systems, charter schools, museums and libraries also fall within the jurisdiction of Title IX if they receive funds from the U.S. Department of Education. These programs must implement a nondiscriminatory policy in order to retain their funding.

As with many federal laws, the application of Title IX is extremely broad. One area to which it applies is the handling of sexual assault and sexual misconduct complaints on campus. Until now, schools subject to Title IX operated under letters issued by the Department of Education containing recommendations about how school administrations could remain in compliance with the law.

The letters, which were referred to as “dear colleague letters,” did not carry the same weight as legally enforceable rules and guidelines. The new guidelines, which must undergo public review and comment before they go into effect, change the long-used definition of sexual harassment. They also introduce due process protections for individuals investigated and disciplined as a result of misconduct allegations.

Proposed DOE guidelines

One of the key provisions of the new guidelines drawing harsh criticism from victim-rights advocates deals with the types of complaints schools are required to investigate to keep compliance with Title IX. The current requirement that schools address all complaints made by students concerning sex discrimination would be modified. The proposed guidelines would limit investigations to those incidents occurring on campus or at locations controlled or overseen by the school.

The proposed guidelines would also address the following with regard to sexual misconduct complaints:

 

  • Schools would have the option of retaining the preponderance of the evidence standard of proof required before taking disciplinary action against a student, or they could adopt the clear and convincing standard, which is a higher standard requiring proof of a high probability that the person accused of misconduct committed the alleged acts.
  • A school’s investigation into sexual misconduct allegations would have to be completed within a reasonably prompt time from the date of the complaint instead of the current 60-day deadline schools face.
  • Under Title IX, sexual harassment is currently defined (for purposes of establishing sex discrimination) as follows: “Sexual harassment is unwelcome conduct of a sexual nature. Sexual harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.” The guidelines would change the definition 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.”
  • The new guidelines introduce due process standards into disciplinary actions. The accused would be entitled to an actual hearing at which the parties could be cross-examined by third parties. There would also be a requirement for written notice of the allegations given to the accused in advance of a hearing and a presumption of innocence throughout the process.
  • Complainants would be afforded the same rape-shield protections granted to victims of rape and sexual assaults in criminal court proceedings.

 

Critics of the new guidelines believe victims of sexual misconduct will be deterred from bringing incidents to the attention of school officials. Proponents note the introduction of due process standards as necessary to promote the interests of all parties involved in the Title IX complaint process.

The reality of reporting of sex discrimination on campuses

While up to 25 percent of women and 15 percent of men attending college are estimated to become victims of sexual assaults, in excess of 90 percent of the incidents go unreported. How these statistics are affected by the proposed guidelines will ultimately measure their success or failure.

Although the protection of the accused is always my primary concern, it is very disheartening to accept that we already deal with a culture which puts 9 out of every 10 victims in fear of exposing a perpetrator. The goal should be reaching a balance in which full disclosure of sexual misconduct is encouraged and fostered, but where the rights of the accused are fully and completely taken into account.

Those who have truly been victimized should not be afraid to tell their story. Those who have been wrongfully accused should have the opportunity to contest any such allegations.

 






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