The Ever-Evolving Title IX Landscape

Recently, Attorneys Eric Long and Tyler Walchanowicz published an article in the Ohio State Bar Association’s Ohio Lawyer magazine, discussing the processes involved in Title IX complaints and respondents’ rights. They explore the ever-evolving Title IX landscape by examining how complaints were previously handled after the Obama administration’s 2011 Dear Colleague Letter and the updated 2018 Dear Colleague Letter and contrast that with processes under the 2020 regulations. They also discuss possible implications of the Biden administration’s plan to roll back the 2020 regulations and issue new guidance as early as 2022.

Does the Respondent Have a Right to Due Process?

Mr. Long and Mr. Walchanowicz assert that, although it has been acknowledged that respondents should be allowed a fair and unbiased process, the definition of due process under previous Title IX guidance and policy has been lacking. They state that a patchwork of judicial opinions has attempted to clarify due process in Title IX matters.

Some of the past rulings have been incorporated into the 2020 regulations, including:

• The right to notice and to be heard
• The right to a hearing before a suspension or expulsion
• The right to cross-examination when credibility is at issue
• The opportunity for defense before an impartial arbiter in private school Title IX complaints.

The 2020 regulations also allow schools to dismiss complaints when the alleged conduct occurred in a non-school-related setting.

What Role Do Schools and Title IX Personnel Have?

Mr. Long and Mr. Walchanowicz note that the issue of bias was not addressed in previous Title IX guidance, which led to complaints by respondents of sex-based discrimination.

The 2020 regulations attempt to remedy bias by mandating that:

• Title IX personnel cannot have a conflict of interest,
• All relevant evidence must be objectively evaluated, and
• Schools cannot base credibility on an individual’s role as a complainant, respondent, or witness.

The 2020 regulations also require a presumption of “not responsible,” which was not a part of previous Title IX guidance. Thus, the accused could be subject to a temporary suspension or expulsion while the complaint was pending.

How Are Title IX Investigations Conducted?

Mr. Long and Mr. Walchanowicz explore what could arguably be considered an unfair investigation process. Schools weren’t required to collect all relevant evidence, and respondents were often times responsible for gathering exculpatory evidence. Additionally, when evidence was handed over to respondents, they often times had very little time to review it.

Now schools must notify all parties of interviews, hearings, and meetings and give them at least 10 days to review the evidence.

How Are Title IX Hearings Handled?

Traditionally, the party who investigated the Title IX complaint was the same one who adjudicated it. Respondents were not always afforded the opportunity to cross-examine witnesses.

Now, the 2020 regulations require that:

• The investigator and adjudicator are different parties,
• A live hearing is held,
• Witnesses and other parties can be cross-examined, and
• Parties can have an advisor present to conduct cross-examination.

How Are Dismissals and Resolutions Handled?

Whereas schools did not allow informal resolutions of Title IX complaints, the 2020 regulations permit it so long as both parties consent.

Also, schools can dismiss a complaint if:

• The complainant wants to withdraw it,
• The respondent is no longer enrolled at the school, or
• The school does not have sufficient evidence to proceed

At Friedman Nemecek Long & Grant, L.L.C., L.L.C. Attorneys at Law, our lawyers stay abreast of the constant changes affecting Title IX complaints. Our team leverages our knowledge and skills to provide robust representation in these matters.