May 7, 2020

New Title IX regulations change how colleges must respond to sexual misconduct complaints


New federal regulations announced Wednesday by the U.S. Department of Education change how colleges must respond to sexual assault and harassment complaints, giving more rights to accused students and lessening reporting mandates for employees, including coaches.

The new rules deliver on Education Secretary Betsy DeVos’ promise to bolster due process in Title IX sexual misconduct investigations, which have been protested by accused students, including college athletes, as being unfair and biased toward alleged victims.

The agency says in its 2,033-page document that these rules — unlike decades of prior federal guidelines — are legally binding on K-12 and postsecondary institutions. The rules go into effect Aug. 14.

The new regulations give colleges and universities discretion in deciding whether coaches and other employees, such as staff and faculty, must report allegations to the Title IX office, stating that this is “respecting the autonomy of students” who might not want their information shared or to initiate a formal investigation. All employees are required to report such allegations at K-12 schools, where the students are minors, and all schools must investigate and adjudicate when a formal complaint is filed.

Previously, college coaches were generally considered to be mandatory reporters, meaning they had an obligation to report any allegations of sexual assault or harassment to the school’s Title IX director or equivalent authority. Reports of coaches and assistant coaches failing to do so have been referenced in several federal Title IX lawsuits against universities and complaints to the U.S. Department of Education Office for Civil Rights.

The new rules state that a school must respond if its Title IX coordinator or any official with “authority to institute corrective measures” on behalf of the school (which can vary depending on the school’s structure) is given notice of an allegation.

The rules also give schools discretion in choosing which standard of proof is required to find a student responsible for a violation, allowing them to use either the clear and convincing standard or the preponderance of the evidence standard. The latter — often defined as 51% of the evidence favoring a finding of fault — was the threshold under the prior guidance.

The new regulations provide for live hearings and allow for cross-examinations, which was a proposal often condemned by survivors and victim advocacy groups.

Another significant change is that schools are responsible for responding only to incidents alleged to have occurred on campus or in off-campus locations related to a university activity or controlled by the university or student organizations, such as sorority or fraternity houses. That does not include, for example, a sexual assault alleged to have occurred at an off-campus apartment.

Even with these new regulations, most colleges likely will continue to require coaches and others in the athletic department to report such information to Title IX officials, said W. Scott Lewis, co-founder of the Association of Title IX Administrators and a partner with TNG.

“The campuses will retain the responsible employee mandatory reporter standard that they have because that’s the better practice,” he said.

Coaches might also have obligations to other regulatory bodies with reporting rules, such as the NCAA and the U.S. Center for SafeSport, he added.

A 2014 NCAA resolution requires “athletics staff, coaches, administrators and student-athletes” to “report immediately any suspected sexual violence to appropriate campus offices for investigation and adjudication.” Last week, the NCAA announced that its board of governors had expanded the association’s sexual violence policy to require athletes to disclose whether their conduct resulted in an investigation, Title IX discipline or criminal conviction for “sexual, interpersonal or other acts of violence.” Schools must also take steps to exchange and confirm such information on potential recruits and transfer students, according to the policy.

The U.S. Department of Education document released Wednesday includes a reference to “clarify why coaches and athletic trainers were not designated in the proposed rules as responsible employees, when this poses a conflict” with the NCAA.

In response, the document states, the department believes that allowing universities to decide how employees — other than the Title IX coordinator and officials with authority — respond to notice of sexual harassment respects the autonomy of students to choose whether they want to tell an employee for the purpose of making a Title IX report or for another reason, such as “receiving emotional support without desiring to ‘officially’ report.”

“The department is not under an obligation to conform these final regulations with NCAA compliance guidelines and declines to do so,” the document states.

According to the regulations, any college or university “may give coaches and trainers authority to institute corrective measures” on behalf of the school and may continue to make coaches and athletic trainers responsible for reporting such information.


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