Sweeping changes to federal rules governing the investigation of sexual misconduct on college campuses finally took effect earlier this month. Sprawled across more than 2,000 pages of legal guidance, the changes cap a years-long regulatory march by the Education Department under Secretary Betsy DeVos toward reversing Obama-era rules governing such investigations.
In the three months between the announcement of the final rules in May and the deadline to implement them this week, colleges, universities and higher education systems across the country have rushed to make the most substantial change to Title IX in decades amid the crushing weight of the coronavirus pandemic and the rippling crises that have followed in its wake.
In Nevada specifically, the publication of the new rules in early May coincided with discussions by regents over how to cut more than $100 million from the budget as state officials watched revenues crater. Just weeks later, regents approved a measure that would allow system-wide furloughs, at the time only the latest drastic measure implemented to stem a money problem that grew worse by the week.
Across the country, higher education institutions decried the timing. Calling the rules “enormously complex and burdensome,” the American Council on Education called for a delay in March. In Nevada, some higher education officials described the timeline as “unprecedented.”
Regent Lisa Levine, who was appointed to the board earlier this year, lamented the fact that the changes were presented with so little time before the deadline to implement them. “That's just totally unacceptable,” Levine said.
“This is not good public policy making, if that's how it's going to be done. I think a much better way is to have it earlier on so that the public could have addressed it with NSHE, and so that regents could have learned more, instead of giving us 30 minutes on the itemized agenda a week before you had to put it forward.”
Still, not everyone in the higher ed system feels as though the process was overly rushed. Regent Patrick Carter, who chairs the board’s Audit, Compliance and Title IX committee, told The Nevada Independent that he had “plenty of time” to review the changes in committee and send those changes back to the full board for a vote.
“It did seemingly take a little bit longer than I anticipated,” Carter said. “I had anticipated it being done in July, which would have given us a handful more weeks, but that workgroup just needed the time. It's an incredibly complex piece of legislation, as far as the amount of changes that it has in policy.”
In short, the changes make a host of key adjustments to due process rules used in the investigation of sexual harassment or other misconduct at publicly funded universities. Most notable among the changes is a new requirement that investigations include a live hearing complete with cross-examination, as well as adjudication of the matter by an “adviser.”
That includes new rules which narrow the scope of an investigation by requiring conduct to be severe, pervasive and objectively offensive, rather than “or” objectively offensive, as well as broadly limiting the jurisdiction to incidents in the U.S. and on property owned and operated by the university.
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