The rules will give universities and colleges a clear but controversial road map for handling emotionally charged conflicts that often pit one student against another. They replace less formal guidance, issued by the Obama administration, that was friendlier to those making allegations.
Under the new rules, college students accused of sexual assault and harassment must be given the right to a live hearing and the ability to cross-examine their accusers, much as the proposed rule directed. The rules also define sexual harassment narrowly, limiting it to conduct that is both severe and pervasive, not just one or the other.
In one change, however, the regulation explicitly adds dating violence and stalking as allegations that must be investigated.
In publishing the proposal in November 2018, DeVos said the new rules would restore balance in a system that, in her view, had been skewed in favor of the accusers. She said her approach would provide clarity and fairness for victims and those accused of wrongdoing.
The proposal came under intense fire from women’s rights groups and Democrats, who said it would allow assailants and schools to escape responsibility and make college campuses less safe for women.
DeVos had hoped to publish the rule late last year, but she was delayed in part by the need to respond to a crush of public comments — 124,196 in all, including a torrent of criticism from universities, advocacy groups, survivors of sexual assault and campus leaders. This spring’s coronavirus pandemic also contributed to a delayed announcement.
The administration worked to follow administrative procedures to the letter, bracing for a lawsuit. Opponents were already vowing to challenge it in court. The rules could also be undone or modified through legislation, should Democrats gain control of Congress next year.
One priority for the administration was making sure the regulation is in place in time to avoid the Congressional Review Act, which allows Congress to scrutinize and roll back recently issued rules.
The regulations stem from a 1972 law known as Title IX that bars sex discrimination at schools receiving federal funding. Most of the attention is on higher education, but the rules also apply to elementary and secondary schools.
Overall, the new regulation describes what constitutes sexual harassment or assault as part of Title IX enforcement, what triggers a school’s legal obligation to respond to allegations, and how a school must respond. Unlike less formal Obama-era guidance that DeVos rescinded, the new regulation was subject to public comment and, once finalized, will carry the force of law.
The final regulation made some changes from the proposal in its details.
It clarifies that universities are responsible for investigating incidents that take place in university-recognized fraternity or sorority houses located off-campus, or in off-campus apartments if the event is part of a university program, two people familiar with the matter said.
In another change, one said, the regulation will consider K-12 schools to be “on notice” of allegations, and therefore required to investigate, if any school employee has been informed of the allegations. That means a student who tells a bus driver or a teacher has effectively notified the district.
The rules come after years of rising pressure on universities to better respond to sexual assault allegations and other misconduct.
Supporters argue cross-examination is the most effective way of ferreting out the truth of what happened in a situation when students offer different recollections of the same event.
But advocates for sexual assault victims say the provision could subject survivors to more trauma and discourage them from coming forward. And universities complained that the requirement would turn their campuses into courtrooms.