UNDERSTANDING THE New Title IX Rules & Regulations
The U.S. Department of Education has published new Title IX rules and regulations (Rules) that take effect on August 14, 2020. The new Rules increase due process protections for anyone accused of sexual misconduct in a university setting.
Definition of Sexual Harassment and How a School Must Respond
The Rules indicate that anyone can make a Title IX complaint to the school’s Title IX Coordinator. Sexual harassment is defined in the Rules as “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.” A school must dismiss a Title IX sexual harassment complaint if the alleged conduct does not meet all three criteria of the definition. Thus, discussion points that may have survived a Title IX challenge in the past now may be dismissed at the outset. A school can no longer unilaterally act against the accused such as by imposing an interim suspension. A presumption of the respondent’s innocence must be applied in both the investigation and the hearing that follows. Both the complainant and respondent may submit evidence. There is no “gag order” on seeking out supporting witnesses or other evidence.
Rules Changes to Title IX Hearings
The Rules make significant changes to Title IX hearings. Title IX complaints will now require a recorded hearing to determine responsibility, sanctions, and corrective action, if any. The only exception occurs if the student parties and school agree to mediate. A school employee or faculty member does not have a mediation option. The investigator and the school’s Title IX Coordinator are not permitted to be the hearing officer or participate as a member of the hearing panel. Schools must also publish their Title IX training materials on their website.
The Rules will also change the standard of evidence required to determine a violation of policy at many colleges. Previously, most colleges used a “preponderance of the evidence” standard rather than a higher “clear and convincing evidence” standard. Now, colleges must apply the same standard of evidence that is used in formal complaints brought against university employees. Many college employees are represented by unions that have negotiated a higher standard in their collective bargaining agreements.
Cross Examination in a Title IX Investigation
Most notably, the Rules now permit a party’s attorney or advisor to cross-examine the opposing party and their witnesses. After the hearing, the panel must make a written report of their findings and the facts that justify those findings. The college must also notify the parties of their right to appeal. If an appeal is unsuccessful, a Title IX lawyer will have preserved the record to best position you for a Title IX lawsuit in a federal court. Violations by the school of the new Rules will be among the grounds to set aside an adverse finding.
