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

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Education Secretary Betsy DeVos announced sweeping rules on how colleges handle cases of sexual assault and harassment that she says will fix a “failed” and “shameful” system that has been unfair to accused students. In what the administration is calling a “historic process,” the proposed rules aim to significantly enhance legal protections for the accused. Under the new regulations, colleges would only have to investigate the most egregious cases of sexual harassment.  Colleges would only have to investigate accusations that are reported directly to designated administrators. A school would only have to investigate if the alleged victim wants it to. Students also would be guaranteed the right to cross-examine each other. The regulations would bar student-to-student confrontations, requiring instead that questions be asked by a third party, such as the accused student’s attorney. “We expect that the proposed regulations will be a dramatic improvement,” says Samantha Harris, director of policy research at the Foundation for Individual Rights in Education. She applauds the administration for “recognizing that schools must provide meaningful procedural protections to accused students when adjudicating such serious offenses.” Many colleges welcome the new clarity — so they know their obligations and can limit their risk of ending up under government investigation. The rules do not go into effect until they go through a public comment period, which could be a long process and could result in more changes. Unlike the Obama-era guidelines, when DeVos’ new rules are implemented, they will have the force of law without having been approved by Congress.

npr.org By Tovia Smith

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The former Purdue University undergraduate called it a “Kafkaesque process.” Only identified as John Doe, the one-time Boilermaker was accused of and ultimately found responsible by the university for sexually assaulting his former girlfriend. He has continually denied the allegations, but after an investigatory procedure that he claims violated his due process rights and discriminated against him because he is male, he was suspended from the university for one year and had to involuntarily resign from the Navy ROTC. Doe then turned to the federal courts for relief. Doe claimed the process that found him responsible did not have a hearing of any kind. There was no cross-examination, no sworn testimony. He was not allowed to see the investigators’ report and was not allowed to provide evidence that supported his side of the story. Rather, he asserted, “there was no presumption of innocence but rather a presumption that the accusing female’s story was true.” After the U.S. District Court for the Northern District of Indiana dismissed his complaint, he pressed forward. Last month, the 7th Circuit Court of Appeals heard oral arguments in John Doe v. Purdue University.

The number of these kinds of lawsuits is rising nationwide. Brooklyn College history professor KC Johnson has become a critic of how universities are handling allegations of sexual misconduct. In general, Johnson said, schools have established procedures that incorporate no meaningful investigation and do not provide any way for the accused to defend themselves. As evidence, he pointed to the increase in lawsuits. According to his records, an average of one lawsuit has been filed every week in federal court by an accused student for the last 2-1/2 years. Most of the lawsuits end in settlements because, he said, universities do not want to go through the discovery process and a trial. The rise in these cases is linked to the 2011 “Dear Colleague letter” issued by the U.S. Department of Education under the Obama administration…  Johnson noted the most unusual aspect of the Purdue case was that the accuser did not appear before the university’s three-member advisory panel. Rather, the accuser submitted a statement that had actually been written by the school’s Title IX coordinator and director of the Center for Advocacy, Response and Education.

ibj.com By Marilyn Odendah

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