New U.S. Department of Education regulations announced Wednesday address how Title IX sexual misconduct cases must be handled moving forward.
The way schools approached such cases had, to date, been criticized as being biased toward accusers and thus unfair to the accused, often student-athletes.
As reported by ESPN, the DOE says in its 2,033-page document that these rules, which go into effect Aug. 14, are legally binding on K-12 and postsecondary institutions.
The new regulations give colleges and universities discretion in deciding whether coaches and other employees, such as staff and faculty, must report allegations to the Title IX office, stating that this is "respecting the autonomy of students" who might not want their information shared or to initiate a formal investigation. All employees are required to report such allegations at K-12 schools, where the students are minors, and all schools must investigate and adjudicate when a formal complaint is filed, according to ESPN.
Previously, college coaches were generally considered to be mandatory reporters, meaning they had an obligation to report any allegations of sexual assault or harassment to the school's Title IX director or equivalent authority. Reports of coaches and assistant coaches failing to do so have been referenced in several federal Title IX lawsuits against universities and complaints to the U.S. Department of Education Office for Civil Rights.
The new rules state that a school must respond if its Title IX coordinator or any official with "authority to institute corrective measures" on behalf of the school (which can vary depending on the school's structure) is given notice of an allegation.
According to ESPN, the new regulations also:
- give schools discretion in choosing which standard of proof is required to find a student responsible for a violation, allowing them to use either the clear and convincing standard or the preponderance of the evidence standard. The latter — often defined as 51 percent of the evidence favoring a finding of fault — was the threshold under the prior guidance.
- provide for live hearings and allow for cross-examinations, which was a proposal often condemned by survivors and victim advocacy groups.
- hold schools responsible for responding only to incidents alleged to have occurred on campus or in off-campus locations related to a university activity or controlled by the university or student organizations, such as sorority or fraternity houses. That does not include, for example, a sexual assault alleged to have occurred at an off-campus apartment.
The DOE document released Wednesday includes a reference to "clarify why coaches and athletic trainers were not designated in the proposed rules as responsible employees, when this poses a conflict" with the NCAA.
In response, the document states, the department believes that allowing universities to decide how employees — other than the Title IX coordinator and officials with authority — respond to notice of sexual harassment respects the autonomy of students to choose whether they want to tell an employee for the purpose of making a Title IX report or for another reason, such as "receiving emotional support without desiring to 'officially' report."
"The department is not under an obligation to conform these final regulations with NCAA compliance guidelines and declines to do so," the document states, as reported by ESPN.
According to the regulations, any college or university "may give coaches and trainers authority to institute corrective measures" on behalf of the school and may continue to make coaches and athletic trainers responsible for reporting such information.
