Articles Tagged with sexual misconduct

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US-DOE-sealOne of several controversial revisions to the new Title IX regulations issued by the Department of Education (DOE) is the change to the definition of “sexual harassment.” The regulations significantly narrow the scope of Title IX’s definition of sexual harassment, making it less expansive than the workplace standard for sexual harassment under Title VII and related state anti-discrimination laws.  The DOE has justified this dramatic redefinition of sexual harassment based on concerns that Title IX enforcement has been overbroad and, as a result, has applied to conduct that may implicate free speech and academic freedom concerns.  The DOE also supports the revisions by claiming that they clarify and provide more explicit guidance to schools about what conduct constitutes sexual harassment for Title IX purposes.  The new regulations may provide more clarity in the most egregious circumstances involving quid pro quo sexual harassment and conduct that constitutes sexual assault, dating violence, domestic violence, or stalking under the Clery Act (the federal law requiring United States colleges and universities to disclose information about crime on and around their campuses).  However, the revised definition raises serious questions for complainants about whether other conduct—such as some forms of physical contact, verbal sexual harassment, or gender-based (non-sexual) or LGBTQ-based harassment—will be prohibited under Title IX.

Definition of Sexual Harassment Under Prior Law

Under prior guidance, the DOE defined sexual harassment as “[c]onduct of a sexual nature [that] is sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from the education program, or to create a hostile or abusive educational environment.”  This definition broadly included a variety of conduct that could interfere in a student’s ability to participate in school, ranging from physical conduct such as rape, groping, and other nonconsensual sexual contact to verbal harassment.

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US-DOE-sealCross examination rights in Title IX campus cases have long been hotly contested—both in litigation challenging the adequacy of school sexual misconduct proceedings and in the public debate about how colleges and universities should handle allegations of sexual misconduct. This week’s newly issued Title IX regulations have attempted to find a middle path: they require schools to hold live hearings and permit cross-examination, but only if it is conducted by advisors rather than by the parties themselves.

Until now, the rights of the parties in campus sexual misconduct cases to question each other and witnesses  have been highly variable. (Generally respondents accused of sexual misconduct and their advocates have pushed for these rights, while groups advocating for complainants have opposed them, but it’s worth noting that the regulations grant the same rights to both parties.) State and federal courts in different parts of the country have taken sometimes very different positions on whether some form of cross-examination is required under the Constitution, Title IX, or state law, and, if so, what that cross-examination has to look like. In general, the decisions granting such a right have been limited to students of public institutions, who have constitutional due process rights that students at private schools do not have.

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