WHAT YOU Need to Know About the New Regulations: Transparency, Presumption of Innocence.
The Department of Education has finally released its new Title IX regulations, which both restore critical due process protections to campus sexual misconduct proceedings and make it harder for universities to sweep allegations of such misconduct under the rug. What are the essential things you need to know?
First, the mere fact that the final document is 2,033 pages long demonstrates just how seriously the Department of Education took the feedback it received from the more than 100,000 commenters who participated in the notice-and-comment process. The regulations themselves start on page 2,008, and the remainder of the document is devoted to addressing, in great detail, the comments received and the rationale for the ultimate decisions. This stands in stark contrast to the previous administration’s April 4, 2011 “Dear Colleague” letter, which—in 19 pages and with no public input whatsoever—led to the widespread dismantling of due process in campus sexual misconduct proceedings.
The new regulations address two broad categories of institutional obligations. The first is jurisdictional: When does a university have a responsibility, under Title IX, to take action? The second is substantive: When a university does take action, what must it do?
In terms of when a university must take action, the new regulations use a speech-protective definition of sexual harassment that mirrors the definition established by the Supreme Court in Davis v. Monroe County Board of Education (1999). This is a critically important provision because the previous administration had employed an overly broad definition that led students and faculty to be punished for speech and expression protected by the First Amendment.
The regulations also contain a lot of information about how schools must conduct their Title IX grievance procedures. Ever since the 2011 Title IX Dear Colleague letter—which eliminated important procedural protections for the accused and ushered in an era of aggressive federal investigations that led schools to abandon even more due process protections—students have been forced to defend themselves in biased, inquisitorial proceedings, often with little to no information about what they allegedly did wrong. Those days are now over. The regulations require schools to give both parties access to all of the evidence related to the accusation — not just the evidence that the university deems relevant to a finding of guilt or innocence. This will make it much harder for universities to withhold important evidence in these cases — such as, for example, evidence that someone may have falsely reported an assault to avoid being flunked out of medical school. The regulations also provide that the notice “must include a statement that the respondent is presumed not responsible for the alleged conduct.” The presumption of innocence is, of course, one of the core principles of our justice system.
Transparency is a theme throughout the new regulations, which is of critical importance to ensuring a fair and unbiased process given universities’ penchant for secrecy. The regulations require not only that universities train Title IX investigators and adjudicators using materials that do not “rely on sex stereotypes” and that “promote impartial investigations and adjudications,” but also that a university “must make these training materials publicly available on its website.”
The other game-changing provision is the requirement that universities adjudicate formal complaints of sexual misconduct using live hearings. 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.
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.
reason.– Samantha Harris thefire.-FIRE nydailynews.-Harris
