Title IX Sexual Misconduct Update Challenged by Courts
Rachael Scarborough
City College is preparing for the rollout of the Title IX regulations related to reporting sexual misconduct enacted by the Trump Administration in May. But with the deadline less than two months away, the timing of the rollout is now in question due to legal challenges to the new rules.
The new regulations will not require coaches or faculty to report any cases of sexual harassment on a college campus. They are set to go into effect on Aug. 14. However, according to a City College spokesperson, there are several court challenges currently underway that could impact this deadline.
The first case was filed in federal court by the American Civil Liberties Union (ACLU) a few days after the rules were finalized, The suit, filed on behalf of plaintiffs Know Your IX, the Council of Parent Attorneys and Advocates, Girls for Gender Equity, and Stop Sexual Assault in Schools, aims to block the rollout because the regulations violate the Administrative Procedures Act.
Attorney generals in 18 states, including California, have also sued, calling the rules arbitrary and capricious, according to the New York Times.
“The rule will reverse decades of effort to end the corrosive effects of sexual harassment on equal access to education – a commitment that, until now, has been shared by Congress and the executive branch across multiple elections and administrations,” according to the lawsuit.
U.S. Department of Education officials is pressuring campuses to comply with the new regulations in spite of the lawsuits. The department issued declaring “schools have been on notice since 2017 that change was coming, and civil rights and due process cannot wait. We know schools can rise to the challenge of protecting all of their students.”
If enacted as written, the new rules will require major changes to how sexual misconduct is handled on school campuses and at school-sponsored functions. Coaches and other employees at colleges and universities will no longer be required to report allegations to the Title IX office, which, according to the regulations, “respects the autonomy of students” who might not want their information shared or a formal investigation initiated.
The process for resolving cases will also change. Campuses will now have the option of using the legal standard of “ clear and convincing evidence ” rather than the less stringent “preponderance of the evidence” required by the previous rules. The new process also requires colleges to provide live hearings and allow students’ advisers to cross-examine parties and witnesses.
City College will continue to use the “ preponderance of the evidence,” standard, according to a college spokesperson.
The process for revising the rules began almost three years ago and reviewed more than 124,000 public comments. The final version, over 2,000 pages long, was published in May.
The changes can be particularly onerous for smaller community colleges that typically have less on-campus housing, a student body that is more focused on career and family life, and relatively few reported incidents.
In 2018, two-year public colleges in the U.S. recorded 713 reported criminal sexual assaults, while public four-year colleges said they had 8,660 reports on campus, according to the Department of Education.
According to a City College spokesperson, the college receives approximately one Title IX assault report every other year.
The new regulations have been controversial from the outset.
Secretary of Education Betsy DeVoss, who oversaw the creation of the new regulations, said in a statement released in May that “Our rule restores due process protections for students on both sides of a Title IX incident [and] empowers survivors like never before. For the first time, Title IX codifies into law sexual harassment as the discrimination it is.”
But critics disagree. Former Assistant Secretary of Education for Civil Rights Catherine Lhamon has said that the new rules are “taking us back to the bad old days when it was permissible to rape and sexually harass students with impunity.
City College participated in the review process along with a group of other California community colleges.
According to a college spokesperson, “ There are widely-held concerns that the new rules could discourage victims from coming forward, that the cross-examination process would further traumatize victims, and that it will be difficult to maintain confidentiality.”
City College’s position is similar to that held by the University of California.
In a press release issued as the rules were being finalized, UC stated: “UC opposes these ill-conceived changes and, in spite of them, will continue our hard-won momentum through education, prevention, and processes that are fair and compassionate to all parties.“