The Department of Education released proposed regulations Friday meant to reshape how colleges handle allegations of sexual misconduct — Harvard among them.
The long-anticipated proposal — which was announced alongside a statement by United States Education Secretary Betsy DeVos — provides a new framework for implementing Title IX, an anti-sex discrimination law that guides universities’ approach to handling sexual assault.
The 149-page release — leaked drafts of which have been circulating for months — includes major updates such as a new rule that would allow colleges to decide which standard of evidence to apply in cases of sexual misconduct. Under the new system, schools could use either the “preponderance of the evidence” standard of proof currently in place at Harvard or the more stringent “clear and convincing” standard.
DeVos said in a press release that the new rules will provide the accused due process and ensure Title IX proceedings are “more transparent, consistent, and reliable in their processes and outcomes.” The guidelines are currently open for a 60-day public comment period, after which they will be printed in the Federal Register. Roughly three months after that date, the Department can change federal regulations to make the proposed rules binding.
Such a change would force Harvard to re-evaluate its Title IX policies.
University spokesperson Jonathan L. Swain wrote in an emailed statement Friday that Harvard is “reviewing” the draft regulations and that the University’s “top priority” is “ensuring the safety and wellbeing of every member of our community.”
“We have invested significant resources into preventing and responding to disclosures of sexual and gender-based harassment, including sexual assault, and will continue to strengthen these efforts,” Swain wrote.
In a major shift from Obama-era federal guidance, the new rules mandate that schools allow both complainants and respondents in formal investigations to question each other during a live hearing. The guidelines would also forbid conduct that takes place outside the bounds of a school “program or activity” from serving as the basis for a formal complaint. It is unclear whether activity that occurs within the spaces owned by off-campus College social groups could serve as the foundation for a complaint under the proposed rules.
Law School Professor Diane L. Rosenfeld, who teaches a course on Title IX, said the new guidance is “an attempt to make [schools] not responsible for off-campus” sexual assault and harassment.
The Obama-era Department of Education issued its own guidance on Title IX in 2011, releasing a Dear Colleague letter that “strongly discourage[d] schools from allowing the parties personally to question or cross-examine each other” during hearings. The letter argued that this setup “may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.”
That letter, unlike DeVos’s proposed guidance, did not force schools to adopt its recommendations. Nevertheless, they undergird Harvard’s internal policies, including the current Faculty of Arts and Sciences Policy on Sexual and Gender-Based Harassment released in 2016, which governs Title IX proceedings for FAS affiliates. The University updated its policies in 2014.
The rules also suggest shifting away from a “single investigator” model, instead allowing both parties access to all evidence gathered by investigators and requiring investigators to act on the presumption of innocence.
The University Office for Dispute Resolution is tasked with investigating formal Title IX complaints. But as regards College students, the ability to implement ODR’s recommendations and impose disciplinary measures rests with Harvard's Administrative Board.
The new guidelines additionally redefine “sexual harassment” as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity,” based on Supreme Court precedent.
Under the Obama-era policy, “sexual harassment” was defined as “unwelcome conduct of a sexual nature” that included “requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”
DeVos rescinded the Dear Colleague letter in Sept. 2017 and allowed schools the opportunity to select their preferred standard of evidence, paving the way for more changes to come.
Law School professor Janet E. Halley said she plans to write a formal comment to the Department advocating for policies similar to the ones currently in place at Harvard Law School, which mandate a different hearing process than the one the government has put forth. She said she thinks the new proposal contains both necessary improvements and “disastrous” flaws.
“A lot of my issues are my concern for the accused, but a lot of my issues are my concern for the complainant,” she said. “There’s good things and bad things for both sides here, so the public furor is pretty idiotic.”
She also criticized the policy’s definition of sexual harassment, arguing that “severe and pervasive” would not encompass a sufficiently wide array of possible behavior. Halley said she would prefer “severe or pervasive.”
Rosenfeld criticized the 60-day notice-and-comment period as “rather short” and noted that the Department released the new guidelines “right before Thanksgiving.”
“That was, I think, a bad faith attempt to do something really drastic while no one was paying attention,” she said. “It’s a 149-page guidance. Sixty days to respond substantively to a really big piece of extremely problematic legislation is a pretty short time.”
While University officials and legal experts review the new federal guidelines, on-campus activists groups have already started gearing up to oppose them.
Campus anti-sexual assault advocacy organization Our Harvard Can Do Better began circulating an open letter to students nationwide opposing DeVos's policies shortly after their release.
The Our Harvard letter charges that, rather than making Title IX “more fair,” the new guidelines “will make it easier for schools to sweep cases of sexual violence under the rug.”
“Existing Title IX processes already provide fair and equal representation to accusers and accused,” the letter reads. “Title IX is designed to provide accommodations to students that the legal system cannot.”
Remedy H. Ryan ’21, a member of Our Harvard Can Do Better, said the organization will participate in the notice-and-comment period and that she hopes other students would as well.
“Anyone can participate in notice-and-comment, so I’d urge all Harvard affiliates to participate in it,” Ryan said.
—Staff writer Shera S. Avi-Yonah can be reached at firstname.lastname@example.org. Follow her on Twitter @saviyonah.
—Staff writer Simone C. Chu can be reached at email@example.com. Follow her on Twitter @simonechu_.