WASHINGTON — Changes made during the Obama administration to Title IX guidelines have triggered a flood of lawsuits asserting the new rules have resulted in unfair treatment of those accused of campus sexual misconduct — including a lawsuit against The Catholic University of America.
In response, Education Secretary Betsy DeVos recently proposed new rules intended to remedy the perceived shortcomings of the Obama-era guidelines, including the concern that they have improperly undermined the rights of those who might have been falsely accused of sexual assault and harassment.
Both religious and secular colleges have struggled with due-process issues in their attempts to implement the guidance. And some Catholic colleges and other faith-based schools felt forced to obtain religious exemptions from the redefinition of gender in the Obama-era guidance.
The new regulations include a series of measures that, according to Secretary DeVos, are intended to ensure fairness in the investigation of sexual assault and harassment claims.
“Throughout this process, my focus was, is and always will be on ensuring that every student can learn in a safe and nurturing environment,” she commented in introducing the new rules. “That starts with having clear policies and fair processes that every student can rely on. Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined.”
The regulations would require that the accuser be cross-examined by a representative of the accused and would allow schools to select either a “preponderance of evidence” standard — required by the previous guidance — or a stricter “clear and convincing evidence” standard.
The rules note that, regardless of whether schools choose the higher or lower standard of evidence, a school “must also apply the same standard of evidence for complaints against students as it does for complaints against employees, including faculty.”
The requirement of cross-examination and the option of a stricter evidentiary standard is significant, given that many colleges faced lawsuits over alleged preferential treatment of the accuser as they attempted to implement the Obama administration’s guidance.
The new rules would narrow the definition of sexual harassment to “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”
Previously, under the Obama-era Title IX guidance, sexual harassment was more broadly defined as “unwelcome conduct of a sexual nature.”
The proposed regulations would also limit incidents that a school must address to “conduct within its education program or activity.”
The Catholic University of America was sued by a former student last year who claimed the school gave his accuser preferential treatment in the disciplinary hearing, withheld evidence showing his innocence, and ultimately suspended him “in an attempt to prove it was effectively policing accusations of sexual assault.”
The school was not alone, as more than 170 lawsuits claiming unfair treatment were filed by students accused of assault after the Obama administration’s guidance was implemented in 2011. In the two decades before, that there were only 15 such lawsuits. Many of these lawsuits were successful.
Catholic universities contacted by the Register are still reviewing what these changes will mean for them.
While colleges consider the consequences of these changes, a change regarding religious exemptions in the proposed regulations will ease problems faith-based colleges had in the past with the Title IX Obama-era guidance.
Many Catholic schools claimed religious exemptions when the Obama administration’s Office of Civil Rights expanded its interpretation of Title IX to include “discrimination based on gender identity, gender expression and nonconformity with gender stereotypes,” leading to concerns over conflict with the Church’s teaching on human sexuality.
While all the colleges that requested religious exemptions received them, the requests led to public shaming of schools that had requested the exemptions through the Department of Education’s Office of Civil Rights. The schools were described as having been given permission “to discriminate” against “LGBT” students.
Now, under DeVos’ new rules, religious schools would no longer have to submit a written request for a religious exemption to the Department of Education (DOE).
According to the DOE, involving religious schools in the process of requesting a religious exemption was unnecessary, burdensome and not in alignment with the original text of Title IX.
“The additional language clarifying that the letter to the assistant secretary is not required to assert the exemption brings the regulatory language into alignment with long-standing department practice,” the proposed rule states.
“The statutory text of Title IX offers an exemption to religious entities without expressly requiring submission of a letter,” the proposal also noted, “and the department believes such a requirement is unnecessary. The department should not impose confusing or burdensome requirements on religious institutions that qualify for the exemption.”
Catholic Schools’ Feedback
The Franciscan University of Steubenville was among the schools that obtained an exemption from the Obama administration’s expanded definition of Title IX gender discrimination.
Franciscan University officials told the Register in a statement that they currently have policies in place to combat discrimination and harassment that are both in accordance with federal law and reflective of their Catholic identity.
The officials said that when the DOE’s new policies are finalized, “Franciscan University will review our current policies and procedures and update them as needed.”
“At Franciscan University of Steubenville, ensuring student safety is an important priority,” university officials emphasized. “We take reports of sexual assault and harassment seriously and respond with care and compassion for all parties involved. The university’s ‘Policy on Discrimination, Harassment and Sexual Misconduct,’ which has been in place since 2014 and updated in 2017, sets forth robust investigation and response protocols that are consistent with federal law and our Catholic and Franciscan identity.”
“We encourage victims of sexual assault to come forward and make a report,” they added. “We also recommend that victims report to local law enforcement.”
An official with The Catholic University of America told the Register that the school is still in the process of reviewing DeVos’ proposed regulations.
In May, when DeVos gave the commencement address at Ave Maria University in Naples, Florida, the school’s president, Jim Towey, praised her planned reworking of the Title IX guidelines.
He told the Naples Daily News at the time that DeVos’ altering or rescinding of the Obama administration’s guidance on Title IX rightly addressed “overreach in higher-education policy.”
“It was a long-overdue correction that’s helped us maintain our faith-based identity,” he said. “What DeVos has done has been laudable.”
Lauretta Brown writes from Washington, D.C.