Proposed Rules Would Reduce College Sexual Misconduct Investigations

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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College CampusThe US Education Department (DoE) has found that its proposed new rules for how educational institutions should handle claims of sexual misconduct will decrease the number of investigations and save colleges and other schools hundreds millions of dollars over the next ten years.

The rules cover the handling of claims involving sexual assault, sexual harassment, and rape.

Sexual Harassment

Sexual harassment of students is prohibited by Title IX of the Education Amendments of 1972.

Title IX requires schools to try to prevent and remedy two types of sex-based harassment:

  • Sexual harassment (including sexual violence, such as rape and sexual assault)
  • Gender-based harassment (i.e., harassment because of the victim’s gender)

As the Department of Education website notes,

Sex-based harassment can be carried out by school employees, other students, and third parties. All students can experience sex-based harassment, including male and female students, LGBT students, students with disabilities, and students of different races, national origins, and ages. Title IX protects all students from sex-based harassment, regardless of the sex of the parties, including when they are members of the same sex.

Supporting Victims

Schools aren’t required to investigate every complaint, but a school’s Title IX coordinator is required to respond to reports of sexual and gender-based harassment and provide support to alleged victims.

The proposed DoE regulations, as the New York Times reports,

seek to bolster the rights of students accused of sexual harassment, reduce liability for institutions and require schools to provide more support to victims.

The DoE’s study estimated that colleges and universities now conduct an average of 1.18 sexual harassment investigations per year. Under the proposed new rules, this is predicted to fall to .72 investigations.

The regulations would apply to the 6,000 colleges and universities in the US as well as to elementary and secondary schools.

The country’s 17,000 elementary and secondary schools now deal with about 3.23 investigations of sexual harassment per year.

The new rules would require that schools only investigate formal complaints that are filed with a figure of authority — such as a principal or dean. Schools would not be required to investigate complaints about conduct that occurs off-campus or outside of school-sponsored programs.

Critics Respond

Critics of the proposed rules say that the estimated “cost savings” ignore the impact on the victims.

Adaku Onyeka-Crawford, senior counsel for education at the National Women’s Law Center, told the Times,

It strikes me that one thing that’s not included in the cost is the one in five women dropping out of school because their school won’t investigate their complaints of sexual violence, and that is a cost that affects everybody.

Catherine E. Lhamon, head of the Education Department’s Office for Civil Rights during the Obama administration, was critical of the new administration for

aspiring to reduce the number of times a school investigates, rather than aspiring to reduce the number of harms that students experience.

Under the new rules, an educational institution would be liable for sex-based civil rights violations only if it was “deliberately indifferent” to harassment — i.e., “if its response to the sexual harassment is clearly unreasonable in light of known circumstances.”

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