GREAT SUMMARY: Dept. of Education New Proposed Title IX Regulations

November 26, 2018

The US Dept. of Education released its new proposed Title IX regulations addressing Title IX sexual harassment/assault. sexual assault. The proposed regulations, which effectively replace the 2011 Dear Colleague Letter, focus on defining sexual harassment under Title IX; outlining those triggers that legally obligate a school to respond to allegations or incidences of sexual harassment; and clarifying school response procedures and requirements. One focus of the new regulations is increased fairness and reliability of outcomes. The proposed regulations require enhanced “due process” protections for all formal resolutions, including:

Live Hearings – the proposed rule requires live hearings when investigating a formal complaint at both public and private institutions
Objective evaluation of all relevant evidence, including both inculpatory and exculpatory evidence, and provide that credibility determinations may not be based on a person’s status as a complainant, respondent, or witness;
Presumption of non-responsibility throughout the grievance procedure;
Burden of proof and burden of gathering evidence must rest on the school, not the parties;
Single-investigator models are prohibited – the regulations require a decision-maker at a hearing investigating a formal complaint separate from the Title IX Coordinator or investigator.
Provide both parties with an equal opportunity to be accompanied at all phases of the grievance procedure by an advisor of the party’s choice (who may be an attorney); the institution can proscribe the advisor’s role except in the instance of cross examination
Provide an opportunity to test the credibility of the parties and witnesses through cross-examination (subject to “rape shield” protections regarding a complainant’s sexual history) which must be conducted by each party’s advisor (no personal confrontation is allowed);
Prohibit consideration by the decision-maker of any evidence offered by a witness who fails to appear to be cross-examined;
Provide to each party an advisor “aligned with that party” for cross examination purposes if the party does not have an advisor at the hearing;
Provide both parties with an equal opportunity to present witnesses and other inculpatory and exculpatory evidence;
Provide both parties with equal access to review all the evidence that the school investigator has collected that relates to the complaint (whether the institution intends to rely on it or not), and give each party ten days to respond regarding their review of the evidence prior to finalizing the investigative report; the draft rule explicitly notes this practice is consistent with FERPA;
Provide a final investigative report to the parties at least ten days prior to the hearing;
Provide both parties with written notice of allegations and written notice of any interview, meeting, or hearing at which a party is invited or expected to participate;
Include reasonably prompt timeframes for conclusion of the grievance process, including reasonably prompt timeframes for filing and resolving appeals, if the school offers an appeal. The regulations allow for temporary delays of the grievance process or the limited extension of timeframes for good cause with written notice to both parties of the delay or extension and the reasons for the action. (Examples of considerations for “good cause” may include absence of the parties or witnesses, concurrent law enforcement activity, or the need for language assistance or accommodation of disabilities.)
The proposed regulations also provide for informal resolution.

jdsupra.com By Saul Ewing Arnstein & Lehr LLP