New Rules: A Breach of Faith

by Rachel Sharma

In the beginning of May of 2020, Betsy DeVos, Secretary of Education, issued new rules about Title IX regulations of sexual misconduct. These regulations are set to take effect on August 14th of this year. These new changes also apply heavily to college students and allow those accused and accusers of sexual assault, harassment, dating violence, domestic violence and stalking to have more due process protections.[1] Title IX states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”[2] The Title IX offices at universities and colleges will face a major change in protocol as most of these rules apply to their work.[3] These changes will not be favorable to anyone they should protect. The rules furthered by Secretary DeVos will change the enforcement of Title IX to combat sexual harassment. While it is a positive change for due process to apply to more people, the other alterations to this policy made by DeVos hinder and hurt the legal system when applied to these crimes in the education system.

Before these changes came into being, the “Dear Colleague” letter, which was put into effect in 2011, reigned supreme over issues related to sexual harassment. The letter defines sexual harassment as “unwelcome conduct of a sexual nature”.[4] This broad definition aided its ability to span from sexual advances to sexual assault. Under the rules set forth in the letter, schools and institutions were required to take action to “eliminate the harassment, prevent its recurrence, and address its effects.” When determining guilt or innocence, the letter details that schools should use the “preponderance of evidence” standard.[5] This standard used also in civil cases, when applied to sexual harassment means that it’s likely that something happened. To talk about it in percentages, this standard is achieved if it is 51% certain that sexual harassment or violence took place. These are just a few of the Obama-era regulations of sexual harassment. However, Betsy DeVos’ changes are a major shift away from these protections.

The only positive from these policies are the increases in due process for those on both sides of sexual harassment. Due process refers to the fair treatment a person is entitled to in the justice system and is necessary for our legal system to function justly.[6] Without due process, our justice system would no longer embody the fair and just process we claim it does. Cross-examination is required for accusers and those accused and allows both parties to question a witness. This cross examination is prohibited in the form of personal confrontations but is left to lawyers and other advisors which hopefully brings calm to a difficult situation for victims. Also, an officer of the hearing must decide if the questions asked in the cross examination are relevant. Questions pertaining to sexual history are more than likely prohibited by that officer.[7] These are the changes DeVos put in place for the due process of the accused and the accuser. However, while these are just, the rest of these rules hurt sexual harassment rules in education and should not be set forth.

First and foremost, the new definition by Secretary DeVos and the Department of Education is restrictive. If the definition was a corset, the woman wearing it would be in the process of suffocating. Under DeVos’ rules, sexual harassment is defined as “unwelcome conduct that is so severe, pervasive and objectively offensive”.[8] This is directly contrasted with the earlier definition of “unwelcome conduct of a sexual nature”.[9] The second definition is broad and encompasses a variety of sexual conduct. The first, however, makes it harder for victims or accusers to prove that what happened to them was sexual harassment at all because they must prove that the conduct was “sever, pervasive and objectively offensive”.[10]

Second, the rules mandate that schools dismiss complaints that do not meet the sexual harassment definition, even if those allegations are proved to be true. Therefore, if someone is being stalked, for example, and the stalking does not meet that standard but is proven true, then the school does not have to act on the victim’s behalf.[11] Even though sexual harassment took place under its jurisdiction, a school does not have to take action. It is easy to see how acts could be categorized as sexual harassment, at least under the old rules, but still not be investigated by an institution.

Third, the rules limit complaints that schools must investigate. Only those submitted through a formal process and those that institutions have an “actual knowledge” or occurring, must be investigated.[12] Formal complaints are registered through authorities who can take corrective action. This, however, does not include Residential Advisors. Although Residential Advisors (RAs) are mandatory reporters, schools are not under any obligation to investigate allegations of sexual harassment that come to their attention because RAs do not have the authority to take such action.[13] Therefore, only by making a formal complaint to someone who has the power to take corrective action can an incident of sexual harassment be investigated.

Fourth, universities and colleges can decide on the evidentiary standard that accusers must meet in order to prove guilt.[14] There are two standards for colleges to chose from: preponderance of evidence and clear and convincing evidence. Preponderance of evidence was the standard used in 2011. This standard requires that the party bearing the burden of proof convinces the court that there is a greater than 50%, at least 51%, chance that the act occurred. This is also the burden of proof used in civil trials. The clear and convincing evidence standard is a more rigorous standard than preponderance of evidence. Clear and convincing evidence must be proven to be highly probable, around 75% certain that the action occurred. If a college or university chooses clear and convincing evidence this could be detrimental to a sexual harassment case. Therefore, the number of cases that can be prosecuted successfully could decrease significantly if an institution decides to use clear and convincing evidence because it is a higher standard and requires more evidence and certainty.

Fifth and finally, under these rules there is a higher difficulty in holding universities accountable. If a university is suspected of not investigating sexual harassment claims, one must prove that the university is “deliberately indifferent”.[15] This means that one must show that their “response to sexual harassment is clearly unreasonable in light of known circumstances”.[16] If it is proven an institution could lose its flexibility in deciding disciplinary measures. However, there is a long list of actions a college or university must take as a part of their mandatory response obligations. Among these are: schools must inform a complainant of the availability of supportive measures, schools must follow a grievance process, and schools must investigate sexual harassment allegations within a formal complaint.[17] If an institution can be proven to act directly against one of these directives, then and only then can the university or college be held accountable because this proves deliberate indifference. However, proving one of these can be difficult and places of learning may not be held accountable for violating the rights of survivors of sexual harassment.

All five of these rules point to one conclusion: that when it comes to sexual harassment investigation, enforcement, and rulings, these new rules will not benefit this cause. In 2019, a study done by the American Association of Universities did a study on sexual harassment and other forms of violence or discomfort related to a person’s sex in colleges. They found that throughout all genders and levels of education in universities, students mostly believe that colleges are “very” and “somewhat” going to take their complaints seriously and investigate them fairly.[18] In 2019, colleges and universities were under the “Dear Colleague” letter rules and regulations. However, with more restrictive rules in place, a more difficult reporting process, a higher evidentiary standard, and a higher difficulty in holding institutions accountable for their fair investigating, how can these numbers do anything but drop? Students will most likely have less faith in their institutions to enforce their basic civil rights. Therefore, these rules will not help universities to protect the rights of their students or help students believe in their universities to do so well.

[1] Erica Green, DeVos’ Rules Bolster Rights of Students Accused of Misconduct, The New York Times (May 6, 2020),

[2] Title IX, Legal Information Institute (last visited July 29, 2020),,and%20discrimination%20based%20on%20pregnancy.

[3] Erica Green, DeVos’ Rules Bolster Rights of Students Accused of Misconduct, The New York Times (May 6, 2020),

[4] Russlynn Ali, Dear College Letter, United States Department of Education: Office for Civil Rights (April 4, 2011),

[5] Id.

[6] Due Process, Legal Information Institute (last visited July 29, 2020),

[7] Erica Green, Sexual Assault Rules Under DeVos Bolster Defendant’s Rights and Ease College Liability, The New York Times (Nov. 16, 2018),

[8] Erica Green, DeVos’ Rules Bolster Rights of Students Accused of Misconduct, The New York Times (May 6, 2020),

[9] Russlynn Ali, Dear College Letter, United States Department of Education: Office for Civil Rights (April 4, 2011),

[10] Erica Green, DeVos’ Rules Bolster Rights of Students Accused of Misconduct, The New York Times (May 6, 2020),

[11] Erica Green, Sexual Assault Rules Under DeVos Bolster Defendant’s Rights and Ease College Liability, The New York Times (Nov. 16, 2018),

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Summary of Major Provisions of the Department of Education’s Title IX Rule (last visited July 29, 2020),

[18] David Cantor et al., Report on AAU Campus Climate Survey on Sexual Assault and Misconduct: Revised, American Association of Universities (Jan 17, 2020),