As we discussed a few weeks ago, the Department of Education has proposed new rules regarding Title IX enforcement that, if enacted, would dramatically improve free speech and due process protections for students on campus.
Last Thursday, the proposed rules were published in the Federal Register, and the public now has 60 days to comment—until Jan. 28, 2019. This notice-and-comment period is an important process, mandated by law, that allows the government to hear from the public before issuing final, binding regulations.
To show your support for the new changes, visit this website. From there, fill out the boxes or attach your comment as a file.
For years, FIRE has been sounding the alarm about how previous Department of Education pronouncements eviscerated free speech and due process protections for students. These proposed regulations would go a long way towards restoring those protections. Among other things, the proposed new regulations include:
- A speech-protective definition of sexual harassment drawn from the U.S. Supreme Court decision defining student-on-student harassment. The Department of Education previously defined sexual harassment broadly as any “unwelcome conduct of a sexual nature,” including “verbal conduct” — an entirely subjective definition that includes a great deal of protected speech. The proposed regulations would define sexual harassment as “[u]nwelcome 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.”
- The right to cross-examination via an advisor at a live hearing, which will allow students to meaningfully question their accusers and will prevent schools from using a “single investigator” to investigate and adjudicate sexual misconduct claims.
- A requirement that accused students receive written, specific notice of the charges against them. While this may sound like an obviously necessary protection, students accused of sexual misconduct on campus are routinely required to meet with investigators with virtually no information about why they are under investigation. (In one case filed against the University of Notre Dame, a federal judge rebuked the university for failing to provide this basic information, finding that the notice provided to the accused student “could not be further from revealing particular policy violations implicated, much less specific allegations of [his] objectionable conduct.”)
- A requirement that both parties be able to review all relevant evidence before the hearing so each may present their cases accordingly and may be aware of any inculpatory or exculpatory evidence that the university chose not to use.
- A revocation of prior guidance requiring that institutions use a low, “preponderance of the evidence” standard in sexual misconduct adjudications.
- A requirement that accused students be presumed innocent. The presumption of innocence is key to American notions of fundamental fairness, but FIRE found last year that nearly three-quarters of schools that we surveyed for a report on due process did not explicitly guarantee students this protection.
If enacted, these changes—as well as the emphasis these new rules would place on colleges’ and universities’ obligation to provide crucial support services to complainants—will go a long way towards effectively addressing allegations of sexual misconduct while also providing accused students with due process protections that are commensurate with the gravity of the accusations against them. They will improve the fundamental fairness of campus proceedings and, in turn, foster broader public confidence in the process, which is to everyone’s benefit.
FIRE plans to submit a comment and we hope you do, too.