After much anticipation – and, for some, consternation – the U.S. Department of Education has finally issued a new rule aimed at reforming Title IX regulations regarding sexual harassment complaints.

U.S. Secretary of Education Betsy DeVos announced the new rule here. According to a press release issued by the Department, the new regulation does the following:

  • Defines sexual harassment to include sexual assault, dating violence, domestic violence, and stalking, as unlawful discrimination on the basis of sex.
  • Provides a consistent, legally sound framework on which survivors, the accused, and schools can rely.
  • Restores fairness on college and university campuses by upholding all students’ right to written notice of allegations, the right to an advisor, and the right to submit, cross-examine, and challenge evidence at a live hearing.
  • Requires schools to select one of two standards of evidence, the preponderance of the evidence standard or the clear and convincing evidence standard – and to apply the selected standard evenly to proceedings for all students and employees, including faculty.
  • Requires schools to offer an equal right of appeal for both parties to a Title IX proceeding.  
  • Protects students and faculty by prohibiting schools from using Title IX in a manner that deprives students and faculty of rights guaranteed by the First Amendment.

Past Title IX revisions – most infamously, a 2011 “Dear Colleague” letter – have arguably circumvented the federal rulemaking process demanded by the Administrative Procedure Act.  

As articulated in an April 24, 2020 letter that I sent to the Department, however, the revision of the new rule strictly followed the proper process and provides for a transparent and fair implementation of Title IX. Attempts at delaying publication of the new rule, I argued, “would not only reinforce bad Title IX policy, it would also bring into question the legitimacy of the federal rulemaking process itself.”

By contrast, Title IX revisions advanced under the Obama (2011) and Clinton (2001) administrations evaded the formal rulemaking process, fueling ambiguity and inviting attempts at the state level to codify federal policies. The 2011 guidance, in particular, has been criticized for depriving the accused of due process and free speech rights. Here in Mississippi, the House has repeatedly passed legislation inspired by the Obama-era Dear Colleague letter. The latest iteration, passed in March 2020, is HB 158. This bill is double referred in the Senate. It is sponsored by House Judiciary A Chair Angela Cockerham.

Previous versions of the “Sexual Assault Response for College Students Act,” such as that passed by the House in 2017, included several problematic policies that mirrored the now-displaced federal guidance. These include: using a very low standard of evidence (preponderance) without proper procedural safeguards; limiting cross-examination of the accuser; and allowing institutions to restrict access to an attorney by the accused. 

Now that the federal guidance has been finalized, Mississippi has an opportunity to revisit this issue in 2021 by passing legislation that would codify the new federal rule.

In the meantime, schools need time to digest and implement the new guidance.