DeVos’s New, Controversial Title IX Regulations Offer Limited Definition of Sexual Misconduct, Will Require Witness Cross-Examination at Harvard

Harvard Crimson

May 8, 2020

By Isabel L. Isselbacher

After more than a year of reviewing comments on a draft of the new guidelines, U.S. Secretary of Education Betsy DeVos released the highly-anticipated Title IX rule Wednesday. The new rule offers a narrow definition of sexual misconduct and imposes new guidelines for schools’ Title IX procedures.

Title IX, a law that prohibits discrimination on the basis of sex in educational institutions that receive federal funding, underpins universities’ sexual harassment prevention and adjudication policies across the country.

The new regulations — which were first released as a draft in November 2018 — shift the definition of sexual misconduct to “unwelcome conduct that is so severe, pervasive, and objectively offensive.” Previous Obama-era guidance defined sexual harassment as “unwelcome conduct of a sexual nature” that includes “requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”

The new rule encompasses “all of a school’s education programs or activities,” both on and off campus. However, for a complaint to be addressed under the new policy, the alleged sexual misconduct must have taken place on-campus or, if off-campus, in the context of a school-sponsored activity, building, or event in which the institution has “substantial control.”

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