Miltenberg: “U.S. Publishes New Regulations on Campus Sexual Assault,” Inside Higher Ed


The U.S. Department of Education on Wednesday released its long-awaited final regulations governing campus sexual assault under Title IX, the law prohibiting sex discrimination at federally funded institutions. It took nearly a year and a half for the department’s Office for Civil Rights, or OCR, to review more than 124,000 public comments on the issue and finalize the proposed regulations, which were published in November 2018. The regulations will be the first Title IX guidance published by OCR to go through a formal notice-and-comment process since 1997, and unlike guidance issued by the Obama administration in 2011 and 2014, they will have the force of law behind them. Colleges and universities will be required to comply with the regulations by Aug. 14. Betsy DeVos, the secretary of education, said the new regulation will secure due process rights for students who report sexual misconduct and for those accused of it, by requiring colleges to provide live hearings and allowing students’ advisers to cross-examine parties and witnesses involved. Under the new rules, institutions must presume that those accused of sexual misconduct are innocent prior to the investigative and decision-making process, addressing a repeated criticism of 2011 guidance issued by the Obama administration. Those in favor of a Title IX overhaul say the Obama guidance, referred to as the Dear Colleague letter, caused colleges to overenforce campus sexual misconduct and led to students being unjustly removed from campuses for false accusations. DeVos rescinded the letter in 2017. The Obama guidance stated college officials should use a “preponderance of the evidence” standard to determine guilt in sexual misconduct complaints, basing decisions on the most convincing evidence presented. It was followed by an explosion of civil lawsuits filed mostly by male students accused of sexual misconduct, who alleged their rights were violated by unfair Title IX procedures at their colleges. The 2020 regulations will instead allow Title IX officials at colleges to use either a preponderance of the evidence or “clear and convincing” standard, which sets a higher burden of proof. The new evidence and cross-examination standards have been points of contention for advocates for survivors of campus sexual assault, who say live questioning could retraumatize and prevent victims from coming forward to report sexual misconduct. Statements made by parties and not cross-examined as part of a Title IX investigation may not be used as evidence, a summary of the new regulations said … The prospect of cross-examination may make it harder for students to report sexual misconduct, but it is necessary for testing the credibility of all parties involved, said Andrew Miltenberg, a New York-based attorney known for defending hundreds of students accused of sexual misconduct. He called the process a “necessary evil.”

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