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Department of Education’s Q&A On Title IX Leaves More Questions Than Answers

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On July 20, 2021, the Department of Education issued its “Questions and Answers on the Title IX Regulations on Sexual Harassment (July 2021).” The Q&A describes the Office of Civil Rights’ (“OCR”) interpretation of schools’ responsibilities under the current Title IX regulations implemented by the Trump administration in 2020. While the Answers presented are not law, they do provide insight into how the Biden administration’s Department of Education interprets the 2020 Title IX regulations and will serve as guidance for schools in their own interpretation of the regulations. They also represent another step in the administration’s pledge to roll back the regulations, which provided significant due process rights to those accused of sexual misconduct and/or gender-based misconduct on school campuses.

Current Title IX Regulations

The current regulations are widely criticized by survivor advocacy groups, which claim that the regulations effectively reduce reporting of sexual misconduct, in favor of protecting the accused student. However, the reality is that the regulations helped to establish a process that was more fair to both Complainants and Respondents in determining whether the accused was in violation of school policies. For instance, the 2020 regulations require colleges to provide live hearings and allow students’ advisers to cross-examine parties and witnesses involved. Courts have long recognized that cross-examination is one of the best tools to ascertain the truth. The regulations also prohibit the fact finder from considering statements made by individuals who do not subject themselves to cross-examination (a regulation that can be problematic as it can limit the admission of even exculpatory evidence). Colleges and universities are also directed to presume that those accused of sexual misconduct are innocent prior to the investigative and decision-making process. This represents a substantial shift from the prior regulations, which allowed schools around the country to train investigators and adjudicators of sexual misconduct claims to “start by believing” the accuser.

On June 23, 2021, the Department of Education announced that they will be issuing a proposed rule on Title IX, which seeks to alter the 2020 regulations. This proposed rule, and the regulations contained therein, is expected to be released in May 2022. However, this long-term plan has not stopped the Department of Education from executing its pledge to roll back some of the protections that went into effect with the most recent regulations. Efforts to reduce due process and fundamental fairness for accused students will also have to contend with the judicial branch, which has increasingly been issuing rulings that are favorable to the accused due to concerns about the lack of due process under the pre-2020 guidance.

Questions and Answers

The Questions and Answers published on July 20, 2021, provide a glimpse into the intentions of the Biden administration relative to Title IX. The Q&A includes 17 sections and provides information on various topics including, but not limited to, the definition of sexual harassment; how a school can obtain notice of sexual harassment; and a school’s response to allegations, as well as live hearings and cross-examination. Included in the appendix are examples of policy provisions from various schools. While these Questions and Answers provide useful information for both schools and the public, perhaps, more importantly, the document provides the public with insight into how OCR will interpret the 2020 regulations, and what can be expected of the new regulations that are expected to be proposed in 2022.

Over the past several years, District and Circuit courts have extended due process rights and expectations that the student disciplinary process will be fundamentally fair to accused students facing allegations of sexual misconduct. As such, repealing the 2020 regulations will be no easy task for President Biden’s Department of Education. However, rather than attempting to rescind provisions, the strategy of the Department may be to allow colleges to use creative ways to undermine and/or make the provisions less effective.

For example, as it relates to cross-examination by an adviser, the Questions and Answers provides that a school may create its own rules for conducting live hearings, such as limiting the role of advisers to relaying questions drafted by their party. In practice, such a rule would make cross-examination significantly less effective and make follow-up questions very difficult, especially in scenarios where an adviser is appointed or is not an attorney. The Department also encourages schools to move beyond the regulations and use a parallel campus disciplinary proceeding as an “additional tool for ensuring safe and supportive educational environments for all students.” Often, these proceedings lack the due process protections afforded by Title IX, making it more likely that the finding of responsibility is factually erroneous. As such, the Q&A seemingly encourages schools to forego and ignore the protections afforded to students under Title IX, by proceeding under the schools’ ordinary disciplinary process. Finally, the Q&A discusses that any party, at any time, may request, without reason, that the entire hearing, including cross-examination, be held virtually. Upon request, a school must grant the virtual hearing. Such an interpretation, which allows any party to force a school to conduct a virtual hearing, will undoubtedly impact a decision-makers ability to examine the credibility of the parties and witnesses. Without the ability to confidently determine the credibility of a party or witness, both the Complainant and Respondent are at heightened risk of results that are factually inaccurate.

Ultimately, the Questions and Answers seem to indicate that the forthcoming regulations will make every attempt to undermine the 2020 regulations. Such efforts will be a disservice to all parties involved, as well as the public, as the adjudication process relative to sexual misconduct claims should be designed to ascertain the truth and to provide a just result.

With the changing landscape of Title IX regulations, it is ever important to have a well-trained and knowledgeable adviser. At Friedman Nemecek & Long, L.L.C., our Title IX attorneys have years of experience dealing with the fluid regulations presented by political changes, court decisions, and securing the rights of all parties at the school level. As the new regulations unfold over the coming months, our attorneys will be prepared and ready to help you with any issues pertaining to Title IX regulations and procedures. If you have questions regarding a student’s rights in Title IX proceedings, or you have been subjected to or accused of, sexual misconduct, sexual assault, dating violence, or sexual harassment on campus, please call Friedman Nemecek & Long, L.L.C., L.L.C., in Cleveland, OH at 216-928-7700 for a free initial consultation.

The full Questions and Answers document can be found here

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