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Newly Proposed Title IX Regulations Seek to Drastically Reduce Due Process Rights

Newly Proposed Title IX Regulations Seek to Drastically Reduce Due Process Rights

Complaints of sexual misconduct, sexual assault, dating violence, and sexual harassment on campuses are governed by Title IX of the Educational Amendments of 1972, an anti sex discrimination law designed to ensure equal opportunity in educational settings regardless of sex. 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 became enforceable law as of August 14, 2020.

The 2020 regulations have been widely criticized by survivor advocacy groups, which claimed that the regulations effectively reduced 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 fair to both Complainants and Respondents in determining whether the accused was in violation of school policies. For instance, the 2020 regulations required colleges to provide live hearings and allow students’ advisors to cross-examine parties and witnesses involved. Courts have long recognized that cross-examination is one of the best tools to ascertain the truth. Colleges and universities were also directed to presume that those accused of sexual misconduct are innocent prior to the investigative and decision-making process. This represented 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 would be issuing a proposed rule on Title IX, which would seek to alter the 2020 regulations. On June 23, 2022, the Department of Education published its proposed amendments to the current regulations. In no uncertain terms, the Department of Education made the goals of these amendments clear, as it stated in an announcement, “The proposed amendments will restore crucial protections for students who are victims of sexual harassment, assault, and sex-based discrimination – a critical safety net for survivors that was weakened under previous regulations.”

Having represented both complainants and respondents in Title IX matters at colleges and universities across the country, the Title IX attorneys at Friedman and Nemecek, L.L.C., view the new regulations as a misstep toward ensuring that due process and fundamental fairness is maintained throughout the Title IX disciplinary process. These amendments seek to strip the accused of vital protections that were put in place by the 2020 regulations. This runs of risk of creating a system that cannot be trusted by complainants or respondents. Below are our thoughts on some of the critical provisions of the new regulations:

Expanding Discrimination Covered Under Title IX

To date, Title IX prohibits discrimination based on a person’s sex, including forms of sexual harassment. However, discrimination based on an individual’s sex stereotypes, sex characteristics, sexual orientation, and/or gender identity had not been included within the purview of Title IX. The proposed amendments would prohibit sex-based harassment, which would be defined to include sexual harassment; harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity; as well as quid pro quo harassment; and unwelcome sex-based conduct. The inclusion of discrimination based on an individual’s sex stereotypes, sex characteristics, sexual orientation, and/or gender identity is a welcomed addition, as it creates protections for groups of individuals who had not been protected by former Title IX guidance or regulations.

Under the 2020 regulations, unwelcomed sex-based conduct is prohibited only if it is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” Under the proposed regulations, unwelcomed sex-based conduct is prohibited if it is “sufficiently severe or pervasive that, based on the totality of the circumstances and evaluated subjectively and objectively, it denies or limits a person’s ability to participate in or benefit from the recipient’s education program or activity.” This is a substantial departure from the current regulation. However, this proposed language is analogous to that of Title VII, which prohibits sexual harassment in employment settings.

Decision makers now have the ability to examine whether sex-based conduct subjectively denied or limited one’s access to a recipient’s education program. For some, this may be a welcomed change, as the amendment recognizes that each individual is different and should be treated as such. Proponents of this amendment will likely argue that someone who is denied access to an education program based on sex-based conduct should not be denied “justice” simply because a decision maker believes a “reasonable person” would have reacted differently. However, it cannot be denied that this proposal creates a significantly lower standard than the 2020 regulations, which inherently opens the door more findings of responsibility, even for what may appear to be otherwise innocent conduct.

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 2020 regulations provided that if the alleged conduct occurred 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. As such, incidents that occurred off-campus could not be disciplined under Title IX.

The proposed regulations would require recipients to address all sex discrimination in its education programs or activities. Under the proposed regulations, conduct that occurs in a recipient’s education program or activity includes conduct that occurs off-campus when the respondent is a “representative” of the recipient or otherwise engaged in conduct under the recipient’s disciplinary authority. In other words, the proposed regulations would require recipients to respond to any alleged sex discrimination, even that which occurs outside the recipient’s education program or even outside the United States, so long as the accused is connected with the recipient.

This provision is interesting as it will have numerous effects. Individual school misconduct policies are wildly inconsistent, and an accused may be grateful that the off-campus conduct was instead investigated under Title IX. However, the remainder of the proposed regulations seek to diminish the due process protections set forth in the 2020 regulations, meaning that the inconsistent code of conduct may not be all that bad after all.

Adding certain off-campus conduct to the scope of Title IX will also drastically increase the number of reported incidents that must be disclosed under the Cleary Act. It may appear that instances of sexual assault have risen, however, any increase in official numbers may simply be the effect of jurisdictional definitions and not an increase in sexual assaults.

Informal Resolutions

Before the 2020 regulations, many schools prohibited, 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 2020 regulations, schools amended their policies and permitted informal resolutions where both parties consent. However, these informal resolutions were only allowed in situations where a formal complaint was filed. While the advantage to a respondent was clear (an informal resolution does not result in a finding of responsibility or a transcript notation), many complainants also benefited from an informal resolution as well.

The proposed regulations seek to allow informal resolutions, “whenever a recipient receives a complaint of sex discrimination or has information about conduct that may constitute sex discrimination.” This amendment will allow parties who agree to informally resolve Title IX allegations earlier than ever-before, which may be advantageous to all parties involved.

Title IX Investigations and Hearings

The 2020 regulations implemented critical due process protections for the accused with the goal of creating a fair and impartial process aimed at seeking the truth. Some of these protections included the presumption that the accused was not responsible; placing the burden on schools to collect and review evidence; written notice to the parties of allegations, dismissal, delays, meetings, interviews, and hearings; equitable treatment of complainants and respondents; mandating that Title IX personnel remain free from conflicts of interests and/or bias; and allowing parties to be accompanied by an advisor of their choice at all stages of the process. Fortunately, the proposed regulations appear to maintain these aforementioned protections. However, there are critical protections that the proposed amendments explicitly allow schools to remove.

Before the 2020 regulations, many schools, especially private colleges and universities, 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 was 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 claimed “we have a dual investigator model” indicating that there are two investigators that play judge and jury (and sometimes victim’s advocate). The 2020 regulations required that the decision-maker, who could not be the Title IX Coordinator or the investigator(s), make a written determination with respect to whether the accused is responsible for violating the policy, a factual basis, rationale, and sanction.

In our opinion, the most significant portion of the 2020 regulations was 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 2020 regulations, helped the decision-makers get to the truth of the allegations. The regulations provided 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 was required provide the party with an advisor free of charge.

Before the 2020 regulations, most Title IX policies that allowed hearings and cross-examination utilized a school’s Title IX Coordinator (or hearing panel member) to accept written questions for cross-examination. The questions could be discarded without being asked or reworded to their liking. The 2020 regulations mandated cross-examination by the advisor and that it be conducted in real-time, directly and orally.

Under the newly proposed amendments, schools are now permitted to have the decision-maker be the same person as the Title IX Coordinator or investigator. In other words, schools are free to re-implement the “single investigator model.” Moreover, schools are not required to have a live-hearing with the opportunity for cross-examination. Instead, schools would be mandated to have procedures that enable the decision-maker to assess the credibility of the parties and witnesses, either by way of a hearing or a private meeting with the individual. In these private meetings, parties would be permitted to propose relevant questions, yet the decision maker would have authority to ask, reword, or discard the proposed questions.

The concern of allowing schools to re-implement the single investigator model is obvious. Throughout the course of the investigation, it is likely that the investigator will begin to develop conclusions and beliefs early in the process. The investigator may take these preconceived notions regarding the evidence and credibility and factor them into his or her decision. Moreover, under this system, there is no hearing and almost no opportunity to adequately challenge the allegations through cross-examination, which courts have routinely held as a critical tool in uncovering the truth. While procedures will be in place for the decision maker to assess credibility, with input from the opposing party, this assessment can occur in a private meeting, effectively stripping the opposing party the opportunity to challenge answers or statements in real time.

Another crucial tenant of the 2020 regulations was the requirement that schools 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 2020 regulations required that the file be “sent” as opposed to being made available for review. This allowed for greater collaboration with advisors and an opportunity to better prepare a defense.

Under the proposed amendments, this is no longer a requirement. Schools may send the parties evidence directly, but it is not required to do so. Instead, schools are required provide mere “summaries” of the evidence, either orally or in writing. A summary of the evidence does not sufficiently allow the accused to prepare a defense, as there is no mechanism to determine whether the summary is flawed, whether it is missing critical information, or whether there is a different interpretation to the evidence aside from the investigator’s interpretation. This will certainly lead to erroneous outcomes.

The proposed amendments appear to make good on President Biden’s promise to roll back the 2020 regulations as much as possible. These amendments cause grave concerns, as many of roll backs will have a directly adverse effect on the accused and their due process rights. The Department's proposed Title IX regulations will be open for public comment for 60 days from the date of publication in the Federal Register. Should the regulations be adopted, they will likely be confronted by a wave of litigation, as courts from around the country have upheld many of these due process rights for accused students and staff.

With the changing landscape of Title IX regulations, it is ever important to have a well-trained and knowledgeable adviser. At Friedman Nemecek Long & Grant, 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 & Grant, L.L.C., L.L.C., in Cleveland, OH at 216-928-7700 for a free initial consultation.

More information regarding the proposed changes, including the unofficial version of the proposed rule can be found by clicking here.