The U.S. Department of Education has announced plans to change regulations governing the actions schools must take to respond to complaints of sexual harassment, alter the definition of sexual harassment, and emphasize that sexual orientation and gender identityopens in new window are included in the scope of Title IX, the civil rights law prohibiting sex-based discrimination in public schools.
These upcoming amendments are the latest in a series of revisions to Title IX regulations in recent years. Trump-era regulations that took effect in 2020 narrowed the definition of sexual harassment, imposed more stringent standards for finding institutional liability for mishandling sexual misconduct complaints, required higher education institutions to hold live hearings with cross-examination, and limited Title IX jurisdiction to incidents that occurred within an institution’s educational programs or activities.
The Trump regulations were themselves largely a reaction to procedural changes instituted during the Obama administration that required colleges to use a “preponderance of the evidence” standard that lowered the burden of proof in sexual assault cases, which in many instances made it easier to establish violations of sexual assault, granted accusers appeal rights if the accused was initially found not responsible, and discouraged cross-examination of accusers.
Trump-era regulations allowed colleges to adopt a more stringent standard of proof, barred anonymous complaints, and—one of the more controversial changes—barred any statements from being considered if the source was not cross-examined in a hearing. In July 2021, a federal court in Massachusetts determined that this last regulation was “arbitrary and capricious” and vacated it. The impact of that decision was nationwide: Decision-makers may now consider statements even if the party or witness does not participate in the hearing or submit to cross-examination.
Against the backdrop of swiftly changing procedural rules, researchers have sought to determine how the Title IX process could best serve students. For example, in 2018 Kathryn Holland, PhD, and colleagues called into question assumptions that mandatory reporting of sexual assault is beneficial because it brings more cases to light, helps connect survivors to support, simplifies training for university employees, and helps ensure Title IX compliance. In 2017, Holland and Lilia M. Cortina, PhD, identified reasons why undergraduate women who experienced sexual assault did not use campus support resources, including accessibility issues; thoughts, beliefs, and affective responses that made it seem unacceptable to use support; lack of faith in campus support; and alternative coping mechanisms, such as using a personal source of support or ignoring the assault.
Despite the regulation’s requirement that institutions provide supportive measures regardless of whether a formal complaint is filed, real and perceived barriers still exist. In addition, Holland and Cortina concluded that certain policy choices made by colleges can inadvertently deter students from interacting with the Title IX process.
Psychologists have also developed a treatment program for students found responsible for sexual misconduct. But here, too, the effectiveness of such interventions can be hampered by policy decisions at both the federal and university levels, particularly rules governing privacy.
The regulatory changes provide psychologists with an excellent opportunity to influence policy. There will be a comment period during which the Department of Education will solicit feedback on the proposed regulations. Psychologists who conduct research on the impact that the Title IX process has on students have valuable input to share.
