This Newsbrief gives our sense of important and timely federal educational news within the following process and 
protest context
To advance educational excellence and equity, we must prioritize the needs of our most vulnerable students and communities. To accomplish this goal, we need clear processes for the development of policy, and we need to take into account opposition to current and proposed policies and practices — protest — as a healthy part of those processes.  

Federal Update

Title IX: Supreme Court, US ED, and Sexual Misconduct Investigations

September 28, 2018

The Issue

News outlets have begun to report that the United States Department of Education (US ED) has drafted — and is about to publicly release — new rules governing how schools are to handle allegations of sexual misconduct. US ED sent the proposed rules to the Office of Management and Budget last month, which is frequently the final step before publication.

The proposed new rules would roll back requirements put forth by the Obama administration under Title IX of the Education Amendments of 1972 (Title IX), a law that protects individuals from being discriminated against on the basis of their sex by education programs or activities that receive funding from the federal government. The new rules are expected to reduce school districts’ obligations to investigate claims of sex-based discrimination and would allow schools to use a greater variety of informal procedures to resolve complaints.

What are the legal standards in the draft regulations?
“Standard” is a legal term that applies to how convincingly someone has to make a case of discrimination against another person or against an institution. If a law sets a high standard, then an individual or group who is alleging discrimination has to show that there is a high probability that the discrimination occurred. Even if a person or people are telling the truth, if they cannot show that there is a high probability that  discrimination occurred, then they have no case, and there is no legal consequence.

When a standard is set at a low level, then it is very likely that the accused person or school will have to respond to the charges, and will have to successfully counter, or “rebut” the charges in order to avoid being held responsible for the discrimination.

The proposed rules would raise a few legal standards, making it tougher in the following ways for people who are alleging sex-based discrimination to have their cases heard:

  • “Unwelcome Conduct”: the new rules say that sex-based harassment has to be severe enough that the “unwelcome conduct” is so intense, “pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” This could make it difficult for an “A” student to bring a successful claim of discrimination, because even if the discrimination happened, the accused student or school could say that the “A” student was not denied access to the educational program because they received good grades.

  • “Deliberate Indifference”: for a school to be legally liable, people would have to show that a school was “deliberately indifferent” to a complaint of sex-based discrimination and that the school acted in a “clearly unreasonable” way to the complaint. This would mean that schools that mishandled complaints or made errors in handling or investigating complaints, would not be liable unless a person could show that the errors were not just the product of carelessness or mistakes in judgment, but were actively, intentionally indifferent to the complaint.

  • “Clear and Convincing Evidence”: whereas the Obama administration said that schools should find that sex-based discrimination occurred if the “preponderance of the evidence” tends to indicate discrimination, the new draft regulations say that schools should not make such a finding unless there is “clear and convincing evidence” that the discrimination occurred. This would mean that the standard for finding discrimination would rise from “more likely than not,” often thought of as “51% certainty,” to “very likely,” often thought of as “75% certainty.”

What are the practical applications?
This week, the Senate Judiciary Committee convened a hearing to gather information on at least one allegation of sexual misconduct that has been brought against D.C. Circuit Court of Appeals Judge Brett Kavanaugh, who was nominated by President Trump for a vacant position on the U.S. Supreme Court. The alleged activity occurred while Kavanaugh was in high school.

It bears noting that additional allegations of sexual misconduct have also been raised in the past few days against Kavanaugh. At least one of these allegations is by an individual who says the alleged behavior occurred while they were undergraduate college classmates.

Under the Obama guidelines, if a college were investigating Kavanaugh’s actions, they would find discrimination if their investigation showed that it was more likely than not that he engaged in such behavior. This is the standard used in civil litigation, when private individuals or groups bring lawsuits against each other.

Under the new draft rules, a school could adopt the lower standard and find no discrimination occurred unless there was “clear and convincing evidence” showing that it was very likely that the sexual misconduct took place.

We note that Kavanaugh’s Senate hearing is not a legal process, and that no formal legal charges are pending against him with regard to these allegations at this time.

The Process

The draft regulations are expected to be published soon in the Federal Register. The publication of the draft rules will set off a time limit for public comment on the proposal, which includes responses to any questions that US ED specifically raises around its own proposal. Among the questions that US ED is expected to ask are:

  • Whether — and to what degree — the rules should treat colleges and universities differently than elementary and secondary schools.

  • How the rules should be adjusted to apply to specific groups, like employees and individuals with disabilities.

If and when the regulations are finalized, they will replace temporary guidance that US ED Secretary Betsy DeVos put into place when she rescinded Obama-era guidance on Title IX pertaining to schools’ responsibilities around episodes of sexual misconduct.

The Senate Judiciary Committee voted this morning to advance Kavanaugh’s nomination to the full Senate. The Senate may vote on Kavanaugh’s nomination as soon as early next week. If a simple majority of the full Senate — 51 senators— votes in favor of his candidacy, he will gain a lifetime appointment to the U.S. Supreme Court. If his candidacy is approved in the next few days, Kavanaugh will join the U.S. Supreme Court in time to hear and rule on the entirety of the Court’s 2018-19 session.

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