By: Ashley-Ann Bryan, J.D. Candidate, May 2019, St. Thomas University School of Law.

Title IX is a federal civil rights law that prohibits sex discrimination in education. More specifically, Title IX aims to protect both men and women form sexual harassment and violence in educational institutions that receive federal funding. The law provides that “once a school knows of or reasonably should have known about sexual harassment or sexual assault on campus, Title IX requires the school to promptly investigate the complaint and take steps to protect its students.”

Under the leadership of Education Secretary Betsy Devos, The Department of Education has recently announced five tentative changes to be implemented to Title IX. These changes are said to provide more flexibility to institutions that was not previously available under the Obama administration’s with previous stipulations adopted in 2011. However, these deviations are unnervingly focused on the “wrongfully accused.” While sexual abuse and misconduct continuously remains at an alarming rate, is there any inclination that this is as a result of wronged perpetrators? Professor Nancy Deutsch of The University of Virginia admits that “[Betsy DeVos] individual rights framework is really shifting to individual rights of the accused, versus the students who are supposed to be being protected by Title IX.” Indeed, there is an absolute concern for the possibility and existence of wrongfully accused perpetrators, nevertheless, the focal point should be protecting BOTH parties in sexual misconduct cases.

Two primarily curious changes include first, the deviation from the Dear Colleague Letter which provided a “preponderance of the evidence” standard for proving campus misconduct cases. Instead, institutions would now have the choice of a higher “clear and convincing” standard for determining guilt in sexual assault cases. Second, the new guidance also gives schools the choice as to who will be given the opportunity to appeal, either both parties or to only the respondent in the case. This is contrary to the previous Obama administration which allowed equal opportunity for appeals by both parties. The pitch for the change is on the grounds of flexibility, but this tractability is not necessary and will likely degrade the system that is already in place. Previous Title IX officer Olabisi Okubadejo herself has stated that she is unsure of the effect this new regime will have and may consequently discourage survivors of sexual assault from reporting – “even if that was not the policy’s intent.”

The crucial question is whether this reform is truly necessary? Though there has been some traction for the changes put forward by DOE, several institutions remain steadfast in the old regime, and have made it clear that they will not change their sexual conduct policies. University of Colorado, California State University, Bentley University and University of Berkley are examples of schools that have released statements of their non-changing stance – and rightfully so.