The hugely impactful Title IX statute has consistently remained a focal point in the United States since its inception in 1972. The statute states:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
Of course, when accusations of discrimination and sexual violence are on the table, controversy can arise.
Last month, a bill was introduced in the New Jersey State Senate, and many believe it could threaten the due process rights of those accused of Title IX violations. The bill would require employees at federally funded colleges and universities who are involved in adjudicating, receiving reports of, and/or providing services to victims of alleged sexual violence to undergo “victim-centered” training.
The intention of this bill is to “ensure the compassionate and sensitive delivery of services in a nonjudgmental manner; ensure an understanding of how trauma affects the victim’s behavior; maintain the victim’s safety, privacy, and (when possible) confidentiality; and recognize that a victim is not responsible for sexual assault.”
This bill makes one thing clear: the pressure is on New Jersey schools to curb sexual misconduct on campus. This pressure seems analogous to the pressure that was applied to schools nationwide by the 2011 Dear Colleague Letter, which required schools to create Title IX compliant policies for investigating and determining discipline for allegations of sexual misconduct. While the goal of the Letter was honorable, it led to a diminution of due process rights for accused students and staff, as schools tried to curb sexual misconduct by stripping those accused of a meaningful opportunity to defend themselves.
The proposed bill, should it progress in the legislature, will likely be met with plenty of legal action, as opponents will argue the bill contradicts the current Title IX regulations. On August 14, 2020 President Trump and the Department of Education’s Title IX regulations went into effect. These regulations were aimed at ensuring due process rights for the accused in Title IX proceedings, with the goal of reaching fair and impartial resolutions.
As part of these regulations, schools are required to presume that the accused is “not responsible,” which is similar to the presumption of innocence our jurisprudence is so familiar with. Moreover, schools are prohibited from evaluating evidence and/or credibility based solely on a person's role as a complainant, respondent, or witness. Importantly, the regulations mandate that Title IX personnel must be free from conflicts of interest or bias towards complainants and respondents.
Should the proposed bill go into effect, opponents will likely argue that the “victim-centered” training is a direct violation of the 2020 regulations, as investigators and hearing officers will be trained to give immediate credibility to complainants, thus interfering with the presumption of innocence and the prohibition from evaluating credibility based solely on a person’s role as a complainant, respondent, or witness. It will also be argued that the “victim-centered” training inherently creates a bias in Title IX personnel in favor of complainants, as the training appears similar to a “start by believing” approach which gives immediate and important credibility to accusers.
Proponents of the bill will likely argue that the training does not hinder due process rights for the accused, but rather, trains Title IX personnel on important issues that arise during Title IX proceedings, such as issues of delayed reporting, embarrassment of the accuser coming forward with allegations, and protecting the accuser from further harm.
One thing is certain: the proposed bill will be a hotly contested issue in the state of New Jersey, and may impact Title IX proceedings throughout the country. Should the bill be enacted, New Jersey courts will likely have critical decisions to make as it relates to the bill’s validity. Additionally, it is expected that President Biden’s administration will propose new Title IX regulations in the coming months. It is anticipated that these proposals will seek to roll-back many of President Trump’s regulations. These new proposals may have an impactful effect on the New Jersey bill’s future. This will be an important development to watch.
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. 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.