After more than a year and a half of revisions, the Department of Education released its official changes to Title IX regulations Wednesday, changing the way Ohio State will be required to handle cases of sexual harassment, sex discrimination and sexual violence.
According to a Department of Education press release, the new provisions — which officially go into effect Aug. 14 — will affect all stages of Title IX procedures in an effort to promote “due process” and equity in investigations. Included in the revisions are a changed definition of sexual harassment, more protections for the accused and limits on schools’ responsibilities for off-campus incidents.
Title IX of the 1972 Education Amendment is a federal law that prohibits any education program or activity that receives federal funds from discriminating on the basis of sex.
“The university is reviewing the regulations and remains committed to providing equal access to education programs and activities, preventing sex- and gender-based harassment and assault in the campus community, providing fair and effective processes for addressing complaints, and serving as a national model for education, prevention and campus engagement,” university spokesperson Ben Johnson said in an email.
In an interview with The Lantern in March 2019, University President Michael V. Drake said Ohio State would evaluate the rules when they officially come out, but that he expressed concern that the regulations would discourage victims and survivors from reporting.
“What we’ve been doing all these years is trying to encourage more reporting so we can learn more and be a better and more reactive community,” Drake said. “I was concerned that some of the things in the proposed rules would go in the opposite direction. Period.”
In addition to quid-pro-quo harassment — in which an instructor conditions educational outcomes on a student’s participation in sexual misconduct — the definition of sexual harassment now considers sexual assault, dating violence, domestic violence and stalking as unlawful sex discrimination. Other forms of sexual harassment must be determined to be “so severe, pervasive, and objectively offensive” as to deny a person’s equal opportunity to education. Under Obama-era recommendations — and Ohio State’s current sexual misconduct policy — conduct must be shown to be either severe or pervasive.
Universities will be able to choose either a preponderance of evidence or clear and convincing evidence as the burden of proof they use for all proceedings, a change from original proposals that required use of the latter, according to the release.
Under a preponderance of evidence standard, evidence must show it is “more likely than not” that sexual misconduct occurred, whereas under a clear and convincing evidence standard, evidence must show it is “substantially” more likely than not that an incident occurred, according to the Cornell University Legal dictionary. Ohio State currently uses the preponderance of evidence standard for all cases, according to university policy.
According to the release, universities will be responsible for addressing sexual harassment incidents that occur off campus without first receiving a complaint only if they occur at “locations, events, or circumstances over which the school exercised substantial control over both the respondent and the context in which the sexual harassment occurs” and any building owned or controlled by an official student organization, including officially recognized fraternities and sororities.
Under Ohio State’s current policy, the university has a “compelling obligation to address allegations and suspected instances of sexual misconduct when it knows or should have known information that would lead a reasonable person to believe that this policy has been violated.” The policy states that off-campus sexual misconduct may be investigated but does not state whether the university must investigate all off-campus harassment incidents without receiving a complaint.
The regulations state that the accused be treated with a “presumption of innocence” and that no sanctions or disciplinary actions may occur before a determination of responsibility has been made.
Per the new regulations, both parties must be able to cross-examine the other during the hearing process through a third-party or adviser, the release states. Under federal law, parties are prohibited from directly questioning each other, and a neutral party must determine the relevance of each question before a witness, complainant or respondent answers. This is consistent with the original November 2018 proposal regarding cross-examination.