Changes to Title IX Add Greater Protections for the Accused

On Wednesday, May 6, 2020, Education Secretary Betsy DeVos announced the much-anticipated changes to Title IX. The federal law prohibits discrimination based on gender and requires educational institutes receiving federal funds to investigate complaints of sexual harassment that occurred on their campuses. It was criticized for treating those accused of sexual assault unfairly.

An Education Department assistant secretary of civil rights Kenneth Marcus said in a statement that too many reports were coming from students "whose careers were tarnished by administrators" because of the way their schools handled their cases.

DeVos stated that the changes would strike a balance of fairness between accusers and the accused (who were essentially denied due process under the previous rules).

The changes will go into effect in August of 2020.

Added Protections for the Accused

The Title IX overhaul was described in an over 2,000-page document that included greater protections for individuals who allegedly committed sexual assault.

A few of the changes that would allow fairer processes:

  • Presumption of innocence: Throughout the case, those alleged to have committed sexual assault will be considered innocent unless evidence proves otherwise.
  • Right to evidence: The accused will now have access to the evidence being used against them.
  • Right to cross-examination: Previously, the accused were not allowed to cross-examine their accusers. This regulation was in place because it was believed that the accuser could suffer emotional harm if they were forced to recall the specifics of the alleged incident during cross-examinations. Under the new rules, cross-examinations are allowed, but they cannot be done by the accused; a representative or lawyer must conduct them.

Narrower Definition of Sexual Harassment

In addition to added protections for the accused, the new rules also refine the previously broad definition of sexual harassment. It is now defined as "unwelcome sexual conduct" "so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school's education program or activity."

Under the new rules, schools can dismiss claims of sexual assault that don't meet this narrower definition.

Higher Standard of Proof

When a student, faculty, or staff member brings a claim of sexual harassment, they must present proof that the accused is guilty of the offense. Previously, the standard of proof was by a preponderance of evidence, which is the lowest standard. Now, educational institutions can include in their policies that the accused must prove by clear and convincing evidence. This is a much higher standard, and it gives the accused greater protection.

Off-Campus Allegation Investigations

The new rules also require colleges to investigate any allegations of sexual assault that occurred during off-campus activities, such as those taking place in buildings run by the institution or at frat houses. However, the school does not have to look into conduct that occurred during study-abroad programs.

Changes Met with Controversy

Although the new rules increase protections for students and faculty accused of sexual assault, advocates for alleged victims state that the changes could make it harder for them to file claims. They say that the updates seem to be weighted more favorably towards the accused.

If you're under investigation for a Title IX violation in Central Illinois, our attorneys at Johnson Law Group can provide effective defense. We have over 100 years of combined experience and a track record of success. Call us at (309) 565-8825 or contact us online today.