Universities and athletic departments will not be allowed to suspend athletes accused of sexual misconduct while investigations into the complaints are ongoing, according to amendments to the U.S. Department of Education’s Title IX regulations.
The provision dealing with student-athlete due process and university investigations of sexual misconduct was one of dozens of sections addressed. in the document published Friday and comes after years of proposed changes to Title IX by the Biden administration. The document responded to approximately 235,000 comments from associations, advocacy organizations and concerned students and families. The finalized regulation will come into force on August 1.
The due process regulation was initially adopted in 2020 during the Trump administration by former Education Secretary Betsy DeVos. A senior administration official told reporters on Thursday that removing a student from a sports team before the conclusion of an investigation was an unfair burden on that student, ESPN reported.
A Department of Education spokesperson said Athleticism the regulations include an “emergency removal provision” that allows a school to remove a respondent from a team in the event of an emergency, “but removal is only permitted after the school has conducted an analysis individualized assessment of safety and risks and determined that there is imminent danger. and a serious threat to the health or safety of a complainant or any student, employee or other person.
“The school must also provide the respondent with notice and an opportunity to challenge the decision immediately upon dismissal,” the spokesperson said.
DOE regulations clarify universities about what they can do when an athlete is under investigation. Recently in January, Illinois guard Terrence Shannon Jr. sued the university after being suspended following his Dec. 28 arrest, for which he was charged with rape for an alleged incident in Lawrence, Kan., in September.
In the temporary restraining order, Shannon’s lawyers said he was not given due process before being kicked off the team, and they cited DeVos’ rules that a university “may not suspend or remove the accused from an educational program or activity pending a determination of liability.” at the end of a grievance procedure.
Shannon’s attorney argued that the university extended the length of his suspension until the charges against him are resolved, but that case won’t go to trial until after the Illini season ends and the NBA draft, June 27.
“Does the presumption of innocence really mean anything? This question is at the heart of this case,” reads Shannon’s lawsuit against Illinois, according to ESPN. “Illinois has promised [Shannon] that it would stick to this presumption, but in practice, Illinois has not applied it by suspending [him] and ruin his career as if he were already doomed. [Shannon] proclaims his innocence, for the record. Sexual assault is a horrible crime, and [Shannon] is appalled that his name is mentioned in the same sentence as such a crime, and he is in no way trying to downplay the fact that this is a real problem.
On April 11, Illinois closed its investigation into sexual assault allegations against Shannon. Robert Wilczynski, director of the university’s Office of Student Dispute Resolution, said the school did not have sufficient evidence to conclude that Shannon violated the student code. Shannon is scheduled to appear in person or via video call for a preliminary hearing in Douglas County, Kansas, on May 10.
The Department of Education’s latest amendments change several DeVos regulations, such as removing a rule requiring schools to hold live hearings with cross-examination to allow those who have been accused of sexual harassment or assault to cross-examine their accusers. The new regulations also lower the burden of proof for survivors and students alleging sex discrimination, advising using a “preponderance of the evidence” – that something is more likely true than false – as the standard of proof. The DeVos regulations allowed universities to use the highest standard of proof, “clear and convincing evidence.” The new regulations only allow this if they are used in “all other comparable proceedings, including proceedings relating to other complaints of discrimination”.
Despite earlier versions of the Education Department’s proposal including provisions regarding the eligibility of transgender athletes, officials said that was a separate issue from the broader Title IX rules. A decision is not expected before the November election. Asked on a call Thursday, a senior administration official said those rules were going through a separate process, several months behind schedule.
“For more than 50 years, Title IX has promised an equal opportunity to learn and thrive in our nation’s schools, free from gender discrimination,” Education Secretary Miguel Cardona said in a call with journalists Thursday evening. “These final regulations build on the legacy of Title IX by clarifying that all of our nation’s students can access schools that are safe, caring, and respect their rights.”
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