Complaints of sexual misconduct, sexual assault, dating violence, or sexual harassment on campuses are governed by Title IX of the Educational Amendments of 1972, a gender discrimination law designed to ensure equal opportunity in educational settings regardless of gender. Title IX mandates that colleges and universities investigate these types of claims and undertake steps to curtail gender-based misconduct on campus.
Title IX was initially applied to allegations of sexual misconduct and harassment at school in 2011 by the Obama Administration’s Dear Colleague Letter, which forced schools to create Title IX compliant policies for determining discipline for accused students and faculty members. The Department of Education published an updated Dear Colleague Letter in 2018 aimed at rectifying the perceived lack of fairness and due process in Title IX matters. Despite the updated guidance, there had been no formal regulations promulgated until the Department of Education published its Final Rule on May 6, 2020. These new regulations will become enforceable law as of August 14, 2020.
Having represented both complainants and respondents in Title IX matters at colleges and universities across the country, the attorneys at Friedman and Nemecek, L.L.C., view the new regulations as a step in the right direction toward ensuring that due process and fundamental fairness is maintained throughout the Title IX disciplinary process. Below are my thoughts on some of the critical provisions of the new regulations:
Jurisdictional Scope Under Title IX
Historically, schools have had jurisdiction to discipline students and faculty for any conduct that was alleged to have occurred well beyond formal school functions. For example, alleged conduct at an off-campus apartment was subject to review by a school’s Title IX office. The new regulations provide that if the alleged conduct occurs outside the scope of an educational program, then, the school must dismiss the Title IX complaint, but may address the allegations under the school's code of conduct.
This provision is interesting as it will have numerous effects. While supporters of increased due process and fairness will welcome the new regulations, accused students and faculty who have been charged with off-campus conduct will no longer be entitled to the protections established under the new regulations. Individual school misconduct policies are wildly inconsistent, and an accused may wish that the off-campus conduct was instead investigated under Title IX.
Eliminating certain off-campus conduct from the scope of Title IX will also drastically reduce the number of reported incidents that must be disclosed under the Cleary Act. It may appear that instances of sexual assault have dropped, however, any reduction in official numbers may simply be the effect of jurisdictional definitions and not a reduction in sexual assaults.
Training of a School’s Title IX Personnel
Title IX provides that schools must establish Title IX coordinators to oversee the implementation of its Title IX offices and policies. Schools are also required to train Title IX personnel. To date, the training provided has been closely guarded despite criticism that the training provides a bias in favor of women and/or accusers. Schools often used “Trauma-Informed training” which critics equate to a “believe the accuser” mentality.
The new regulations require that Title IX training involves training on how to serve impartially, including by avoiding prejudgment of the facts, conflicts of interest, and bias. Schools are also required to publish training materials on their websites.
Title IX Personnel Must be Unbiased
While it seems obvious that a school’s Title IX coordinator and Title IX investigator(s) should remain free from bias and refrain from any preconceived notions regarding respondent’s guilt, Title IX regulations have not adequately prohibited such bias until now. Accused students and faculty members have challenged alleged pro-female bias in lawsuits across the nation brought under Title IX. In response, schools have argued that the perceived bias is not based on gender, but rather on a pro-victim bias and that victims can be any gender.
Under the new regulations, Title IX personnel at a school must be free from conflicts of interest or bias toward complainants and respondents. Title IX personnel, including investigators, must engage in an objective evaluation of all relevant evidence, including both inculpatory and exculpatory evidence. Schools, per the new regulations, should avoid credibility determinations based on a person's status as a complainant, respondent, or witness.
Title IX Investigations
The new regulations mandate that an accused is "presumed innocent," a familiar concept in American jurisprudence. Prior to the new regulations, this basic constitutional presumption of innocence had not been a staple of Title IX policies across the country. The failure of schools to recognize an accused as “innocent” until proven responsible improperly shifted the burden of proof to the accused. This led to disciplinary action being taken as an interim measure, which could result in a student or faculty member being removed from campus-based merely on an allegation of misconduct.
Now, schools have the burden of collecting evidence. Too often, this burden has fallen on the accused to produce favorable evidence. Pursuant to the new regulations, the schools now have the burden to fully investigate and collect evidence, including exculpatory evidence. Schools are also prohibited from restricting access to evidence and implementing gag orders limiting a party’s ability to discuss the allegations.
Schools are permitted to determine whether to apply the "preponderance of the evidence" or "clear and convincing evidence" standard in their Title IX process and, under the new regulations, the standard must be applied evenly to both students and faculty members.
Further, the new regulations require schools to send written notice of any investigative interviews, meetings, or hearings to the parties. Schools must also send evidence to the parties with at least 10 days to review. In the past, some schools provided an accused mere hours to respond to voluminous files relating to the allegations, which left the accused with inadequate time to respond while still having to engage in daily life as a student or faculty member. Some schools also required that the accused come into the Title IX office to review the file. The new regulations seem to require that the file be “sent” as opposed to being made available for review. This will allow for greater collaboration with advisors and an opportunity to better prepare a defense.
Title IX Hearings
Many schools, especially private colleges and universities, have implemented a “single investigator model” to determine whether an accused is responsible for violating the school’s Title IX policy. Under a single investigator model, an investigator conducts the investigation, is tasked with making a finding of fact as to responsibility of the accused, and at times, determining the appropriate sanctions. Under this system, there is no hearing and almost no opportunity to adequately challenge the allegations through cross-examination. When confronted with concerns that a school’s single investigator model strips the right to due process and fundamental fairness from the accused, some schools have claimed “we have a dual investigator model” indicating that there are two investigators that play judge and jury (and sometimes victim’s advocate). The new regulations require that the decision-maker, who cannot be the Title IX Coordinator or the investigator(s), must make a written determination with respect to whether the accused is responsible for violating the policy, a factual basis, rationale, and sanction.
In my opinion, the most significant portion of the new regulations is the requirement that colleges and universities have a live hearing with the opportunity for a party’s advisor to conduct cross-examination of the opposing party as well as any witnesses. These provisions, more than any other in the new regulations, will help the decision-makers get to the truth of the allegations. The regulations provide that an attorney may serve as an advisor, however, if the party does not have an advisor at the time of the hearing, the school must provide the party with an advisor free of charge.
Most Title IX policies that allow hearings and cross-examination, utilize a school’s Title IX Coordinator (or hearing panel member), to accept written questions for cross-examination. The question can be discarded without being asked or reworded to their liking. The new regulations mandate cross-examination by the advisor and that it be conducted in real-time, directly and orally. The decision-maker can instruct a witness not to answer a question if the question is deemed irrelevant.
Dismissals and Informal Resolutions
A school may now dismiss a Title IX complaint if the complainant informs the Title IX coordinator that he or she wants to withdraw the complaint, the respondent is no longer enrolled at the school, or if the school cannot gather sufficient evidence. The provision that a school may dismiss the case if the accused student is no longer a student, is particularly interesting. While this language is merely permissive, a voluntary withdraw from school by the accused will allow the school to dismiss the charge if the school is so inclined.
Many schools prohibit, as a matter of policy, informal resolutions in cases of alleged sexual assault. This was a tenant of the Obama-era guidance that changed in the 2018 Dear Colleague Letter. While the 2018 guidance permitted schools to use an informal resolution process to address claims of sexual assault, schools did not typically amend their policies to allow it. With the new regulations, schools will be amending their policies and can now permit informal resolutions where both parties consent. While the advantage to a respondent is clear (an informal resolution does not result in a finding of responsibility or a transcript notation), many complainants will also benefit from an informal resolution as well.
Title IX prohibits retaliation against individuals for their participation in the Title IX process. Some schools have found respondents responsible for engaging in retaliation where the respondent filed a lawsuit against the complainant for defamation. Under the new regulations, the exercise of 1st Amendment rights does not constitute retaliation. While there are many factors to consider before filing a lawsuit against an accuser, the concern of a potential retaliation charge will no longer be among them.