In November 2018, the Department of Education released interim regulations under Title IX for improving the way in which schools respond to sexual harassment and assault. Critics say the proposed regulations will gut school sexual violence protections and silence survivors. But will they? Let’s play “Two Truths and a Lie” and find out. Can you identify which of the following statements is not true?
Any school that accepts federal money is required to address and investigate student claims of sexual harassment and assault, irrespective of whether the same claim is being investigated by the police.
In their zeal to appear tough on sexual harassment and assault, many colleges and universities have established sexual misconduct disciplinary committees that operate from from a presumption of guilt and deny accused students any meaningful opportunity to prove their innocence.
The Department of Education’s proposed Title IX Regulations will prevent colleges and universities from expelling sexual predators and require them to abandon efforts to address sexual misconduct on campus.
Let’s take these statements one at a time:
A. TRUTH! Title IX of the Education Amendments of 1972 prohibits any federally funded educational program or activity from discriminating on the basis of sex. Although the statute doesn’t mention sexual violence, the Supreme Court has held that a school’s failure to address or investigate claims of sex-based harassment and assault can constitute discrimination. Schools, therefore, have an affirmative obligation to address claims of harassment and assault, irrespective of outside legal proceedings.
B. TRUTH! Where once American colleges and universities turned a blind eye toward campus sexual harassment and assault, today our institutions of higher learning are more concerned with appearing tough on sexual misconduct than they are with evaluating allegations objectively. Title IX bureaucracies at many schools have not only dispensed with the presumption of innocence, they have denied accused students any meaningful opportunity to question the credibility of the accuser or to submit evidence in support of his (or her) version of events. Although stacking the deck against accused students increases the number of school disciplinary actions, it does little to reduce the risk of campus sexual assault or or harassment.
C. LIE! Proposed Title IX regulations require, for the first time, schools to formally investigate all complaints of sexual misconduct to respond meaningfully (with supportive and other measures) to every known report of such conduct — even where no formal complaint has been filed. The regulations also require that schools provide accused students with timely, specific notice of the allegations, an opportunity to review evidence, and the chance to question witnesses and submit evidence in their defense.
Bottom line: Campuses have a legal and moral obligation to investigate and address claims of sexual harassment and assault; but they also have an obligation to investigate claims objectively, without presuming the guilt of the accused, and with respect for due process. Proposed Department of Education regulations seek to achieve this balance by requiring that schools support victims, investigate all claims, and safeguard the rights of all students involved in campus sexual misconduct proceedings.