The Department of Education today issued the long-awaited rules governing the administration of Title IX in universities and K-12. According to the press release, the “key provisions” of the Department of Education’s new Title IX regulation are:

Defines sexual harassment to include sexual assault, dating violence, domestic violence, and stalking, as unlawful discrimination on the basis of sex
Provides a consistent, legally sound framework on which survivors, the accused, and schools can rely
Requires schools to offer clear, accessible options for any person to report sexual harassment
Empowers survivors to make decisions about how a school responds to incidents of sexual harassment
Requires the school to offer survivors supportive measures, such as class or dorm reassignments or no-contact orders
Protects K-12 students by requiring elementary and secondary schools to respond promptly when any school employee has notice of sexual harassment
Holds colleges responsible for off-campus sexual harassment at houses owned or under the control of school-sanctioned fraternities and sororities
Restores fairness on college and university campuses by upholding all students’ right to written notice of allegations, the right to an advisor, and the right to submit, cross-examine, and challenge evidence at a live hearing
Shields survivors from having to come face-to-face with the accused during a hearing and from answering questions posed personally by the accused
Requires schools to select one of two standards of evidence, the preponderance of the evidence standard or the clear and convincing evidence standard – and to apply the selected standard evenly to proceedings for all students and employees, including faculty
Provides “rape shield” protections and ensures survivors are not required to divulge any medical, psychological, or similar privileged records
Requires schools to offer an equal right of appeal for both parties to a Title IX proceeding
Gives schools flexibility to use technology to conduct Title IX investigations and hearings remotely
Protects students and faculty by prohibiting schools from using Title IX in a manner that deprives students and faculty of rights guaranteed by the First Amendment

Over the next few months (and in the fall at the Ohio State Journal of Dispute Resolution’s Symposium on Title IX and Dispute Resolution), the impact of the new rules will be hotly debated. One positive development is that, in student to student misconduct cases, greater use of informal resolution mechanisms is now permitted (previously, informal processes were prohibited if either party alleged sexual violence). From a mediation proponent’s perspective, this change will likely be a benefit to claimants and respondents alike because mediation, and restorative justice processes, are much more flexible and less fear-inducing than are adjudicatory processes. They can be structured in a way that minimizes contact between the parties, and the parties can exercise greater creativity in developing their own solutions. Critics are likely to assert that the revised grievance procedure’s more formal structure, permitting cross-examination of the claimant by the respondent’s representative, for example, will discourage claimants from reporting incidents. Hopefully, though, the increased ability of parties to use informal resolution processes will mitigate what some are likely to perceive as a chilling effect of the formal grievance process on prospective claimants.