Schools can respond to allegations of sexual misconduct in ways that 鈥済o beyond鈥� the Title IX regulations adopted by the Trump administration last year, as long as those additional steps don鈥檛 conflict with the Trump-era rules or Title IX itself, the U.S. Department of Education stated .
The Education Department鈥檚 interpretation of the Trump-era rules, released July 20, makes it clear that those 2020 regulations represent 鈥渕inimum steps鈥� for educators. It also says that while schools must presume that a person alleged to have committed the misconduct isn鈥檛 responsible, schools 鈥渟hould never assume a complainant of sexual harassment is lying or that the alleged harassment did not occur.鈥�
In addition, the guidance spells out that while elementary and secondary schools are not required to conduct live hearings with cross examinations of different parties, elementary and secondary schools must respond any time that any school employee 鈥渉as notice that sexual harassment might have occurred.鈥� And schools may respond to allegations of sexual misconduct that doesn鈥檛 meet the definition of sexual harassment spelled out in the 2020 regulations.
The department鈥檚 鈥淨uestions and Answers on the Title IX Regulations on Sexual Harassment鈥� comes as the administration reviews rules for Title IX of the Education Amendments of 1972, following an executive order from President Joe Biden.
The review could lead to significant shifts in policies addressing how both K-12 schools and institutions of higher education must respond to allegations of sexual assault and harassment, as well as how they must protect LGBTQ students from discrimination and ensure students are treated equally irrespective of their gender.
The Biden administration held a hearing on Title IX enforcement last month. The education department shared transcripts of those hearings on July 20.
Political division around Title IX and sexual assault allegations has grown
The issue of how schools must respond to sexual-misconduct allegations under Title IX has become a prominent national political issue in recent years, as experts and others debated how to weigh the rights of the accusers and the accused, and what threshold of evidence officials should use when determining guilt.
In 2017, former education secretary Betsy DeVos revoked Obama administration guidance for Title IX enforcement, and said the Obama-era guidance threatened the due-process rights of those accused of misconduct. However, victims鈥� rights groups and others said DeVos鈥� decision put people at risk and could lead to less-aggressive Title IX enforcement.
After public input, DeVos issued new Title IX regulations last year. Among other things, DeVos鈥� rules said education officials could use a higher bar for determining if there is sufficient evidence of misconduct to require a response. Again, the new rules provoked different responses. Some said DeVos had taken appropriate steps to ensure fair safeguards for the accused, while others said the rules could make it more difficult for accusers to prove their claims and make it easier for schools to cover up incidents of misconduct.
Although much of the controversy around Title IX in the last several years has revolved around colleges and universities, the situation has affected K-12 educators as well. The tug of war over Title IX has fatigued school officials as well as students who feel caught in the middle. There were also concerns about the practicality of implementing the new rules in the midst of the coronavirus pandemic.
The Title IX rules adopted by DeVos say K-12 schools must respond when they have 鈥渁ctual knowledge鈥� of a complaint of sexual harassment; the Obama-era guidance said schools must respond to incidents they 鈥渞easonably should鈥� have been aware of.
The new guidance from the Biden administration says schools may respond to alleged sexual misconduct, even if the misconduct does not meet the definition of sexual harassment in the 2020 rules. It also highlights how last year鈥檚 Title IX rules addressed off-campus settings where the school exercises 鈥渟ubstantial control鈥� over the respondent and the context, such as a school field trip.
The Trump administration unveiled the Title IX regulations in May 2020 and they went into effect on Aug. 14, 2020, but the department鈥檚 new guidance stresses that the rules are not retroactive.
