New York, NY, May 7, 2020 — On May 6, the Department of Education formally issued new regulations to implement Title IX, the law that bans sex discrimination at schools receiving federal funds, and which now often applies to campus accusations of sexual misconduct.
“These new regulations go a long way toward fixing a broken system,” said the National Association of Scholars (NAS) President Peter Wood. “We congratulate and thank Education Secretary Betsy DeVos for tackling the many problems that plague Title IX administration at America's colleges and universities.”
The new regulations replace guidance documents from the Obama Administration which had pseudo-legal authority and allowed mere accusations of sexual offenses to sabotage the lives of accused students and faculty, many of whom were punished before even being heard, including suspensions and expulsions from schools, as well as permanent designations on academic records as sex offenders.
The NAS agrees with many of the policies advanced by the regulations, such as the requirement that recipient schools hear and respond to any and all students who claim discrimination in education because of their sex.
Sexual misconduct allegations are serious. Because of this, NAS is even more pleased to see that the new regulations provide basic due process protections to those accused of this type of Title IX discrimination by requiring schools to state explicitly in their Title IX policies that students accused of such behavior are presumed innocent until proven otherwise, that they cannot be punished until a case is closed and responsibility is found, and that all evidence and information regarding allegations, including exculpatory evidence, must be disclosed.
Additionally, such allegations must be aired in live hearings where witnesses and parties can be questioned and cross-examined by student advisors. All Title IX personnel – coordinators, investigators, and adjudicators — must be free of conflicts of interest or bias, and their training materials must be made available to the public.
Other aspects of the regulatory scheme limit the effectiveness of the great strides made above: The ability of accusers to appeal exoneration decisions poses “double-jeopardy” type risks; the omission of any deadline to file complaints (a rule like a statute of limitations); and inclusion of some sexual misconduct as educational discrimination under Title IX without evaluating its effect on equal educational access.
Dr. Peter Wood noted, “Ultimately, these regulations are a step in the right direction for Title IX reform. Transparency, and above all, considerable due process protections, will be restored when these regulations take effect.”