"Campus leaders work hard every day to fulfill the promise of Title IX by addressing reports of sex-based discrimination, particularly sexual harassment and sexual assault, as quickly and effectively as possible. We are grateful that today’s final rule clearly reflects many of the concerns outlined in the hundreds of thousands of comments received by the Department of Education, including ours, and resulted in changes. We applaud the department for providing some flexibility for institutions to decide how to evaluate allegations and assess the credibility of the parties. Removing the current mandate requiring a live hearing with cross-examination for student disciplinary processes involving sexual assault complaints is a good thing. In too many cases, this requirement has turned those proceedings into adversarial, court-like tribunals, raising concerns about potential re-traumatization for survivors and creating an undeniable chilling effect on their willingness to come forward.
There are other positive aspects to this final rule that we also applaud. It defines sex discrimination and sex-based harassment broadly. It requires institutions to begin an investigation of a complaint presuming an accused student is innocent. It permits institutions to continue to make available informal resolution processes to resolve complaints of sex-based harassment between students, if and when the parties voluntarily choose this option and if the institution determines it is appropriate to offer it. The updated rule also maintains several beneficial parts of the 2020 regulations, such as the requirement that campus policies and procedures must provide equitable treatment of all parties involved and must prohibit conflict of interest or bias among Title IX coordinators, investigators, decision makers, and informal resolution facilitators.
We appreciate areas of the rule that provide additional flexibility and clarity, allowing our campuses to better serve students. However, in several respects the rule will expand already complex regulations in ways that create significant new obligations for campuses, requiring an enormous amount of retraining for campus administrators and employees. That includes new and broadened reporting responsibilities touching virtually every employee on campus.
Colleges and universities will work hard to come into compliance with the final rule by its Aug. 1 deadline. However, the deadline for implementing this complex package of regulatory revisions, a year and a half after comments were submitted on the proposed rule, disregards the difficulties inherent in making these changes on our nation’s campuses in such a short period of time. These challenges will fall particularly hard on small, thinly staffed, and under-resourced institutions. Further, by requiring implementation over the summer, the rule will significantly limit the ability of campuses to consult with key campus constituencies—perhaps most importantly, their students—in determining how these rules will be implemented on each individual campus. After years of constant churn in Title IX guidance and regulations, we hope for the sake of students and institutions that there will be more stability and consistency in the requirements going forward."