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  • Writer's pictureLeslie A. Farber

Proposed Sexual Misconduct Rules Create Cause for Concern

young woman saying no

Last month, U.S. Department of Education Secretary Betsy DeVos unveiled a proposal to revise the rules governing Title IX sexual harassment and assault allegations and how they must be handled in education administrative proceedings.  While DeVos asserts the new guidelines aim to balance the rights of victims and the accused, the proposal met with criticism from advocates and victims’ rights groups for limiting the cases schools must investigate, bolstering the rights of students accused of assault, and ultimately making campuses less safe.

Title IX is a 1972 law barring sex discrimination at any school that receives federal funding.  Although most of the attention is focused on institutions of higher education, the rules also apply to elementary and secondary schools.  Overall, the proposed policy changes describe what constitutes sexual harassment or assault for the purpose of Title IX enforcement, what triggers a school’s legal obligation to respond to allegations, and how a school must respond.

The government’s proposal comes at a time when the #MeToo movement has led to greater public scrutiny of and accountability for harassment and assault, and colleges and universities have been under pressure to better respond to allegations of sexual assault and other misconduct.  However, the new policies look to narrow the definition of sexual harassment as well as when and how a school must respond, potentially making it more difficult to hold accusers responsible.

The proposal’s three key changes are as follows:

1. Narrows the definition of sexual harassment. Under the proposal, fewer allegations would be considered sexual harassment.  Prior guidelines held that harassment was "unwelcome conduct of a sexual nature."  The new regulation adopts recent U.S. Supreme Court precedent defining sexual harassment as "unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it denies a person access to the school's education program or activity."

2. Limits when a school must investigate. The new rules would require that institutions only be held legally responsible for investigating formal complaints and responding to reports that school officials have “actual knowledge” of happening.  In addition, the incident must have occurred within the school's own programs or activities.  If an incident between students happens off-campus, the school would not necessarily have to conduct an investigation.

3. Treats administrative hearings like a trial court. When investigating complaints, schools will be required to implement a range of due-process procedures, including a presumption of innocence, the opportunity to present witnesses and evidence, and the right to an adviser or attorney at all phases of the process.

The proposal also gives a school the choice to raise the burden of proof to "clear and convincing" instead of the traditional "preponderance of the evidence" standard.  The accused would also be given the opportunity to have their attorney cross-examine their accuser.  Many feel this proposed rule goes too far in incorporating legal concepts into a school disciplinary setting, and that it could discourage victims who might be more willing to face those accused in a less intimidating administrative hearing.

Unlike the less formal guidance that the new plan would replace, the proposed regulation will face a public comment period of 60 days and, once finalized, will carry the force of law.

If you or someone you know is involved in a sexual misconduct situation at school, a local education attorney can help you understand your rights and protections under the current guidelines.  For specific concerns regarding sexual harassment and assault in New Jersey, please contact our office at 973-509-8500 x213 or

The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.

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