Education Department releases new Title IX regulations

May 6, 2020, 10:57 p.m.

Provost Drell said Stanford will continue efforts to “ensure that our campus is a safe and respectful environment to live, work and study” after Secretary of Education Betsy DeVos announced new rules regarding the adjudication of allegations of sexual misconduct at colleges and universities. The regulations have already generated controversy.  

“We expect this new rule will prompt much discussion nationally,” Drell wrote in an email to the Stanford community. “However the federal regulations might affect Stanford, our goal remains to provide support for our students and ensure a fair, timely, end effective Title IX process.”

Lauren Schoenthaler, a senior associate provost who oversees Stanford’s Title IX Office, said the University will be reviewing the regulations extensively and communicating with student leaders. 

The new regulations strengthen the rights of the accused, narrow the range of claims that universities are required to investigate and raise the standards by which universities can be held legally liable for failing to address allegations of sexual misconduct. 

“Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault,” DeVos said. “This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process. We can and must continue to fight sexual misconduct in our nation’s schools, and this rule makes certain that fight continues.”

The new rules are the first formal regulations issued since 1975; previous Title IX rules have been released as guidance. 

Victims’ rights activists have consistently criticized DeVos for favoring the accused and supporting policies that will discourage survivors from bringing allegations to universities.

This includes Stanford Law professor Michele Dauber. 

“These new regulations are going to make survivors far less likely to report harassment and assault, and they will make schools and colleges less safe,” Dauber said. She added that the regulations “dramatically limit the kinds of behavior and the locations of behavior that Stanford or any other university would be responsible to investigate.” 

Faculty and staff, as well as students, have denounced Stanford’s sexual misconduct services and policies recently as the University undergoes an external review of its policies. In a survey whose results were released in October, 14.2% of respondents said that since coming to Stanford, they had experienced at least one incident of nonconsensual sexual contact.

The Daily has reached out for comment to members of the ASSU Executive Cabinet who are involved in sexual assault and relationship abuse prevention efforts.

The new rules released by the Education Department more narrowly define sexual harassment as “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 recipient’s education program or activity.” They also consider sexual assault, domestic violence, stalking and dating violence to constitute sexual harassment. 

Universities are not required to address allegations that do not fall under the definition and are only expected to address complaints that are reported to figures of authority through the school’s formal procedures.

“Very few cases of sexual harassment rise to that kind of level of extremity, so victims who experience harassment that is not rape, that is not so very severe that they have to, say, drop out of school, would have no reason to report only to be told that there is nothing legally that the school can do to help them,” Dauber said. 

She added that it is unclear whether institutions would be permitted to expand their policies beyond these standards, such as by adhering to a broader definition of sexual misconduct.

The new rules are intended to strengthen protections for survivors and “restore due process in campus proceedings,” according to the Education Department. They require that universities afford an equal right of appeal to both parties in a Title IX proceeding and that institutions of higher education hold live hearings to allow lawyers and “advisors” to cross-examine victims and the accused.

“The regulation carries the full force of law, unlike the previous administration’s much-criticized ‘Dear Colleague’ letter on the topic which denied students basic due process protections and led to cases frequently being overturned by the courts,” the department wrote in a statement on Wednesday. The “Dear Colleague” letter refers to 2011 guidelines from the Obama Administration.

Stanford currently uses a hearing model for its Student Title IX Process, which applies when the alleged perpetrator is a student. The University abandoned its use of cross-examinations during an overhaul of its Title IX rules in 2013.

“They were abject failures,” Dauber said.

Between 1997 and 2010 “we reported 175 rapes under the Clery Act and only four students elected to carry their accusation to a hearing and only two findings of responsibility were made,” Dauber said. “Students routinely said that it was the high burden of proof and cross-examination that most intimidated them away from trying to get accountability.” 

Under Stanford’s current proceedings, cases that result in a hearing do not require students to be in the same room (a provision which is encompassed by the new regulations), and each party can listen to the other’s testimony and submit questions both in advance and during the hearing. 

But most complaints at Stanford are currently handled through mediation, according to Dauber. 

“Even the few hearings that we do have, we won’t be having those anymore, because no student would voluntarily sign up, in my opinion, to be cross examined by some ‘advisor’ of the accused student,” she said. 

Dauber also criticized the timing of the release of the regulations. 

“It’s really shameful that the Education Department decided to release these rules in the middle of a global pandemic,” Dauber said. “It just shows how little they care not just about rape victims, but about education.”

After an initial version of the regulations was released in 2018, public actors were invited to participate in a comment period. Stanford worked with the Association of American Universities (AAU) and the American Council on Education (ACE) to express concern about the standards’ potential impacts. 

The final rules include some attempts to respond to such concerns. While the draft regulations mandated that schools only address incidents that take place on campus, they now “hold colleges responsible for off-campus sexual harassment at houses owned or under the control of school-sanctioned fraternities and sororities,” the Department of Education wrote.

“With the benefit of robust public participation in the rulemaking process, this new Title IX regulation reflects Secretary DeVos’ commitment to ensuring that every survivor’s claim of sexual misconduct is taken seriously, and every person accused knows that guilt is not predetermined,” the Department added.

Educational institutions are required to institute the new policies by August 15.

This article has been updated to include additional material from the Department of Education and to note that The Daily has reached out to members of the ASSU Executive Cabinet.

Contact Georgia Rosenberg at georgiar ‘at’ 

Georgia Rosenberg is the Vol. 261 executive editor for print. She was previously a Vol. 260 news managing editor and a Vol. 258/259 desk editor for university news. Contact her at grosenberg 'at'!

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