U.S. Secretary of Education Betsy DeVos. Photo Credit: Gage Skidmorevia Wikimedia Commons

Proposed federal regulations on handling sexual assault and harassment on campus hold some promise of more clarity for general counsel at universities, but may not be the panacea GCs want.

The New York Times last week reported on the regulations being prepared by U.S. Education Secretary Betsy DeVos to replace Title IX guidelines adopted by the Obama administration. Experts who spoke with Corporate Counsel about the proposal warned that because the rules are still under consideration, they could change before they are released for public comment.

Christine Helwick, former general counsel at California State University and now of counsel with Hirschfeld Kraemer in San Francisco, suggested that the new rules could bring “greater clarity and guidance” for GCs.

Helwick cautioned, though, that “a full retreat from processes that have already been developed—and in some instances embedded in state law—will surely be confusing and complicated, at least in the short run.”

The new rules, unlike the previous guidelines, will be legally binding in the #MeToo era when sexual misconduct has become a growing issue on campuses. Some more serious cases where campus doctors have assaulted students, such as at Michigan State University, the University of Southern California and The Ohio State University, have made national headlines.

Barry Burgdorf, former vice chancellor and general counsel in the University of Texas System from 2005 to 2013, said Title IX claims are much more common than they once were. Burgdorf is now special counsel with Pillsbury Winthrop Shaw Pittman in Austin, Texas.

“The new rules are important for the counsel who are handling these matters on campus every day,” he said. “For me, there was never a time when there were not a couple of them going on at once.”

Though these matters were once handled much like routine sex discrimination or harassment cases, Burgdorf said, the treatment has changed. “Many times what used to be a routine sexual misconduct lawsuit is now carried out under the auspices of Title IX. That is the trend you are seeing.”

He said it is not surprising that “the pendulum is swinging a bit the other way,” after the Obama guidelines favored the plaintiffs.

The new rules will give defense attorneys arguments to raise against whoever is trying to bring discipline against a faculty or staff member, or a student. “It will give them [defendants] another tool in their bag,” Burgdorf said.

But he does not expect most GCs to “materially change their practices” because of the new rules.

Joshua Richards, vice chair of the higher education practice at Saul Ewing Arnstein & Lehr in Philadelphia, noted at least three restrictions that would take effect under the proposal.

First, Richards said, the proposal limits the “trigger to investigate” a claim to only formally reported complaints. Under the Obama guidelines, an institution was obligated to investigate any claim made to a Title IX officer or to any responsible employee.

The proposal, he said, also narrows the swath of cases that a school must investigate. Under the Obama guidelines, any report of unwelcome conduct of a sexual nature triggered an obligation to respond. But the proposal restricts that obligation to unwelcome conduct of a sexual nature described by the U.S. Supreme Court as being “so severe, pervasive and objectively offensive that it denies a person access to the school's educational program or activity.”

Richards said the proposal also follows other recent court trends in limiting a school's obligation to investigate off-campus conduct. But that obligation could change if the conduct sparked an on-campus event. He said GCs will “need to wait and see more” on this issue once the final rules are released.

One advocate welcoming the draft rules is public interest law professor John Banzhaf, of George Washington University Law School. Banzhaf has long criticized how campuses have handled sexual assault and rape cases.

“I am overall very pleased with the proposed changes which have been reported, as I and many of my law school colleagues have long called for them,” Banzhaf said. “Many of [the changes] are simply designed to assure that the accused receives due process as required by the Constitution,” and by U.S. Supreme Court precedent.

“Courts have been increasingly striking down proceedings which do not provide due process,” he added. “Thus many of these reforms were inevitable anyway.”

Banzhaf said he was disappointed that a proposal he has previously promoted was not mentioned in the Times story—referring Title IX sexual assault complaints to regional centers that would coordinate their work with law enforcement.

If that idea is not included in the final draft, “I plan to submit it as a comment so that the department will address it specifically,” Banzhaf noted.