On August 29, the New York Times released an article claiming they had acquired Title IX changes proposed by the United States Department of Education. From the article, it is difficult to confirm the legitimacy of the reported changes.
The changes have not been officially released by the Education Department or Secretary Betsy DeVos.
The alleged new rules themselves echo the temporary rules Secretary DeVos put into place in September of last year after the Education Department rescinded a letter from the Obama administration. The letter outlined the responsibilities of public schools in reference to sexual assault and harassment.
In a statement via email, Augustana President Steve Bahls said that “Augustana will maintain its strong commitment to have policies and programs in place that represent best practices in sexual assault prevention and response.”
President Bahls and Augustana’s attorney Sheri Curran chose not to comment on the specific changes until after the Education department officially releases the proposal.
Title IX taskforce member Dr. Jennifer Popple said in an email that the school “will not in any way stop the work we’ve been doing, even after the regulations are published. We will continue seeking out and implementing the very best practices and programs to prevent and respond to sexual misconduct.”
According to the Times, the proposed changes would include a tighter definition of “sexual harassment,” restricting it to include only actions so “severe, persistent and pervasive” that it prevents the victim from participating in school sponsored activities and programs, including classes.
The changes would also restrict the cases which schools are legally required to investigate. Formerly, schools were bound by law to investigate formal complaints as well as cases the school “reasonably should know” about. The Times reports that under the new standards, schools are only legally responsible for cases presented through formal complaints.
Reportedly, the changes to Title IX would allow schools to choose the standard of evidence. However, all schools in Illinois, including Augustana, are required by the Preventing Sexual Violence in Higher Education Act that took effect in 2015 to use the preponderance-of-evidence standard that determines guilt based on the probable truth of the accusation based on evidence.
Schools in other states under the DeVos rules can choose to apply the “clear and convincing evidence” standard to determining the guilt of the accused, or they may apply the preponderance standard. This differs from the Obama letter than required schools use the preponderance-of-evidence standard.
The Preventing Sexual Violence in Higher Education Act also denies the use of cross-examination between complainants and respondents, a practice that the alleged DeVos changes allow.
The Obama letter was a source of controversy as victims’ rights groups praised the accountability applied to schools. Critics argued that the letter was unsupportive of the due-process rights of accused students.
The alleged new DeVos standard is said to emphasize the “innocent until proven guilty” portion of American due process.