July 20, 2021
The Education Department on Tuesday issued new guidance for how colleges should investigate sexual misconduct under Title IX, the federal gender-equity law.
The department released a question-and-answer document interpreting the Trump administration’s Title IX regulations, which took effect a year ago. The guidance is a stopgap measure, indicating how federal officials will enforce Title IX while the department goes through the lengthy process of reviewing and revising the regulations.
The Title IX rules, championed by the former Education Secretary Betsy DeVos, added protections for students accused of sexual misconduct, like mandatory live hearings with cross-examination. They have been criticized by victim advocates who say they let colleges off the hook for not taking sexual misconduct seriously. President Biden, who led a crusade against campus rape as vice president, said during his presidential campaign that he wanted to overhaul the regulations.
Here are a few highlights from the department’s new Title IX guidance.
1. Colleges can still investigate incidents that don’t fall under the regulations’ narrow definition of sexual harassment.
This isn’t news to most campus practitioners, but the Education Department made clear that colleges can respond to complaints even if they don’t meet the high bar for what qualifies as sexual harassment under the Title IX regulations.
The definition in the regulations only requires colleges to investigate harassment that is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access” to education. But colleges don’t need to dismiss complaints if the alleged misconduct doesn’t fit into that category, the guidance said.
2. Colleges should investigate some incidents that happen off campus.
One aspect of the regulations that’s drawn a lot of criticism is that colleges aren’t obligated to respond to alleged sexual misconduct that takes place in off-campus apartments — where many reported sexual assaults involving students occur.
But colleges still need to investigate off-campus incidents if the institution “exercised substantial control” over the person who committed the harm, as well as “the context in which the alleged sexual harassment occurred,” the department emphasized. That could include certain incidents in off-campus settings — like alleged misconduct between two students in a private hotel room during a college-sponsored trip.
Also, if sexual misconduct initially occurs off campus and then moves into an on-campus setting — as might happen in a case involving a pattern of harassment, stalking, or domestic violence — colleges must respond under Title IX.
3. Colleges can designate professors and other campus employees with the “authority” to respond to sexual misconduct, if they deem it appropriate.
Also, formal written complaints aren’t the only way to put colleges “on notice” that they must respond to sexual misconduct. They might learn about allegations through personal observation, a newspaper article, or an anonymous report, the department said.
4. Colleges can remove students or employees accused of sexual misconduct from campus while the investigation is active.
If colleges determine that an alleged offender “is a threat to others” and provide the person with an opportunity to challenge the decision immediately afterward, administrators can force them to leave campus, the department said.
5. Colleges can set time frames for finishing Title IX investigations, even though they’re not forced to do so by the rules.
The department noted that previous guidance had encouraged colleges to complete investigations within 60 days, and that nothing in the regulations “prohibits a school from adopting the 60-day timeframe.”
6. If students or employees don’t participate in the live hearing, campus officials can’t rely on any of their previous statements to make a decision, even if they confessed.
This part of the Title IX rules is designed to ensure that anyone involved in a Title IX case is thoroughly questioned on their version of events before those alleged facts are used to levy a punishment. But it is one of the most frustrating aspects for administrators, who are concerned they’ll have to reach a conclusion in a given case that might be wrong.