On Nov. 16, 2018, the U.S. Department of Education issued proposed regulations to supplement Title IX of the Education Amendments of 1972 in response to a dire need for clarification of the gender discrimination statute that has evolved so far from its beginnings. Title IX regulations have never before specifically addressed sexual harassment, sexual assault or the concept of due process. 34 C.F.R. §106. One would never realize this given how extensively schools have been deciding cases of campus sexual misconduct for years.
Within hours of the announcement of the proposed regulations, victim advocates were demonizing them as “turning back the clock,” “making schools less safe” and “turning campus hearings into courtroom proceedings.” These reactions are premature and, perhaps, misguided. Before the naysayers denigrate the proposed rules, I would encourage them to ask themselves: How can we have a fair result without a fair process?