New Title IX Regulations
The Department of Education recently released its new Title IX regulations, which restore critical due process protections to campus sexual misconduct proceedings.
Education Secretary Betsy DeVos issued final rules for how public and private schools and colleges must address allegations of sexual misconduct, locking in protections for accused students and faculty but tempering earlier proposals that critics said would harm victims of assault and harassment.
The rules preserve Betsy DeVos’s broad goals in overhauling Title IX, the 48-year-old federal law that prohibits sex discrimination in programs that receive federal funding, by infusing legal standards in disciplinary proceedings that have been left largely to schools to navigate.
What Does It Mean for Schools?
Significantly, the new regulations narrow the definition of sexual harassment and require colleges to hold live hearings during which alleged victims and accused perpetrators can be cross-examined to challenge their credibility. The rules also limit the complaints that schools are obligated to investigate to only those filed through a formal process and brought to the attention of officials with the authority to take corrective action.
Schools will also be responsible for investigating only episodes said to have occurred within their programs and activities. And they will have the flexibility to choose which evidentiary standard to use to find students responsible for misconduct — “preponderance of evidence” or “clear and convincing evidence.”
To find a school legally culpable for mishandling allegations, they would have to be proven “deliberately indifferent,” in carrying out mandates to provide support to victims and investigate complaints fairly.
The final rules, which take effect in August 2020, codify for the first time sexual assault grievance proceedings that until now were covered by Education Department guidance and recommendations.
The regulations also require universities to allow both parties “to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint,” even if the university does not plan to rely on that evidence in making its determination.
Single Investigator Model
In the years since the Dear Colleague letter, more than 600 students accused of sexual misconduct have sued their universities alleging denials of due process, and suppression of exculpatory evidence is a common theme in these cases. This will make it much harder for universities to suppress either inculpatory or exculpatory evidence.
The other major provision of the new regulations is the requirement that universities adjudicate formal complaints of sexual misconduct using live hearings at which the parties, through their advisors, are permitted to conduct cross-examination.
This means that universities can no longer use the “single investigator” model in which one person effectively serves as detective, prosecutor, judge, and jury—a model that has led to terrible abuses of power and that, even under the best of circumstances, rests a tremendous amount of authority in one person with, as one federal judge put it, “little effective power of review.” It also means that, in cases that so often turn entirely on credibility, the parties will have the benefit of cross-examination, which the Supreme Court has called “the greatest legal engine ever invented for the discovery of truth.” The regulations also make clear that cross-examination can only be done through an advisor, rather than by the parties themselves, out of concern for the possibility that “parties will feel traumatized by the prospect and reality of personal confrontation.”
It is difficult to understate the importance of these regulations for due process on campus. After a careful and lengthy rulemaking process, the Department of Education has taken meaningful steps to ensure that the laws it enforces are not used to violate students’ most fundamental rights.
Contact the Title IX Attorneys at Wallin & Klarich Today
If you are the subject of a Title IX investigation, you should discuss all available defenses with an experienced Title IX defense attorney as soon as possible. At Wallin & Klarich, our skilled Title IX lawyers have more than 40 years of experience successfully representing clients facing school investigations. Let us help you now.
With offices in Orange County, Riverside, San Bernardino, Los Angeles, San Diego, West Covina, Torrance, and Victorville, there is an experienced Wallin & Klarich Title IX attorney available to help you no matter where you are located.
Contact our offices today at (714) 587-4279 for a free phone consultation regarding your case. We will get through this together.