Monday, December 16, 2019
by Justine Dunlap, who continues her exploration of the challenges facing survivors of gender violence and their advocates.
In the next several weeks, the Department of Education is set to finalize Title IX regulations it proposed in November 2018. During the notice and comment period, the proposed regulations received over 100,000 comments. According to some reports, DOE made modest modifications as a result. However, it appears that the final regs will largely track the proposed ones. The changes from the way Title IX complaints/investigations were handled under Obama-era guidance include: 1) allowing schools to use a higher level of proof—a clear and convincing rather than a preponderance of the evidence standard, 2) mandating some type of cross-examination, which had been previously discouraged, and 3) imposing a narrower definition of acts that would violate Title IX.
On December 10, 2019, four congresswomen—including Elissa Slotkin, the representative from the district encompassing Michigan State University, the situs of Larry Nassar’s crimes and an ineffectual Title IX investigation—introduced a bill that would prohibit DOE Secretary Betsy DeVos from implementing the regulations. What will happen next is unclear except for this: the battle will rage on. And at least partially obscured in the battle will be some of the problems that pre-existed the proposed regs. Prior guidance could be fuzzy and/or overinterpreted to err on the side of extreme policies that benefitted few but the cottage industry of Title IX trainers that has emerged over the past several years. New regs would be most helpful if they created a clearer process and implemented ways that actually supported victims who choose to report, without simultaneously creating the impression that the outcome was foreordained.