What do the new federal sexual misconduct rules mean for colleges and K-12 schools?
The Department of Education released new rules this week guiding how schools handle sexual misconduct claims, the first major changes to Title IX regulations in more than 20 years.
The new rules governing how schools respond to sexual harassment, discrimination and assault complaints apply to any college, university and K-12 school that receives federal money. They go into effect Aug. 14.
So what’s in the rules — and what’s controversial about them?
Some school leaders and advocates have been particularly critical of a new rule regarding how schools investigate and hold hearings over sexual misconduct allegations. Those who bring the allegations could be cross-examined during a hearing, which advocates say could be traumatizing.
“Subjecting those reporting sexual harassment to direct cross-examination — in spite of more compassionate options — could deter already reluctant and sometimes traumatized complainants from coming forward,” University of California system President Janet Napolitano said in a statement.
The Department of Education says the rule “restores fairness on college and university campuses by upholding all students’ right to written notice of allegations, the right to an advisor, and the right to submit, cross-examine, and challenge evidence at a live hearing.”
Education Secretary Betsy DeVos echoed that message, saying Wednesday on Twitter that the new rule “provides new and meaningful protections for survivors of sexual harassment/assault & balances the scales of justice on campuses across America.”
In some cases, students accused of sexual misconduct have been expelled.
“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,” she said in a statement.
“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,” DeVos said.
Know Your IX, a group that advocates for survivors of sexual assault, said the change “guts student survivors’ rights and tips the scales of school sexual misconduct cases in favor of perpetrators and schools that wish to sweep sexual violence under the rug.”
“The final rule makes it harder for survivors to report sexual violence, reduces schools’ liability for ignoring or covering up sexual harassment, and creates a biased reporting process that favors respondents and schools over survivors’ access to education,” Sage Carson with Know Your IX said in a statement.
Also under the regulations, schools will only be responsible and liable for harassment or assaults on campus or at off-campus facilities associated with the school, such as fraternity houses. The rules only apply in the United States, so they would not cover any incidents during a study abroad program or at an overseas campus.
They also define sexual harassment as “sexual assault, dating violence, domestic violence, and stalking.”
What about K-12 schools?
The new rules, the department said, require “elementary and secondary schools to respond promptly when any school employee has notice of sexual harassment.”
The rules say that schools have to investigate sexual assaults between students on campus even if there’s a separate law enforcement investigation. Schools will have to tell the students involved and their parents about the allegations.
The question whether something happened off campus can also be a problem. The rules bar schools from investigating sexual misconduct that happens off campus.
Sasha Pudelski, with The School Superintendents Association, told NBC News the new rules “make it seem as if the district can take action related to the drinking that happened or to a fight that broke out, but if there was a sexual assault, these regulations say, ‘Oh, you can’t do anything about that.’”
Schools will have to have separate people to investigate claims about on-campus harassment or assault and make a determination about what happened.
The National School Boards Association, in comments on the rules last year, said the regulations are “detached from the realities of many K-12 school buildings.”
The rules, the association said, “unwittingly create an atmosphere where procedure takes precedence over finding a workable solution in a given situation.”
