Baseball great Yogi Bera’s well-known quote “It’s Déjà Vu All Over Again” applies well to the New Title IX Regulations released by the Department of Education (DoE) on April 19th, 2024. The new regulations are a significant step backward for Due Process in Title IX Proceedings. In fact, the DoE has almost reincarnated the oppressive regulations that were adopted with the release of its infamous Dear Colleague letter in 2011.
The new regulations eliminate the advancements and increased fairness established with the regulations established in 2020. No longer do parties have the right to cross-examine to test the truthfulness of Complainants, Respondents and Witnesses. While some courts have tried to neuter the effect of cross-examination in Title IX cases since 2020, even a reduced right of cross-examination is better than none.
The DoE has done away with the right to a live hearing established in 2020 and now gives schools the blessing to re-establish the reviled single investigator model. The single investigator model is one where the Title IX coordinator appoints one individual to act as the Investigator and Decision Maker, in other words, the judge, jury, and executioner. Even before the prior regulations, this model of investigation and determination was found to be so unfair and onerous that a Federal Appeals Court determined that parties must be entitled to a live hearing. Schools that will now elect this process, likely those who employed the single investigator model before being required to offer live hearings by the 2020 regulations, will now be able to deny accused students and faculty the right to confront their accuser.
Previously, schools were required to provide parties with all evidence regardless of whether the school felt it was relevant. This gave parties the ability to argue whether they felt a fact was relevant or not and whether to include or exclude it from the final report. The new regulations say that a school only has to provide you with evidence that they feel is relevant, thus eliminating your ability to make arguments as to what is relevant and what is not. With the new regulations, Education has bestowed upon a school’s Title IX staff the ability to mind read and predict what you think is and is not important.
If we were to predict the future of Title IX over the next few years, we’d say that schools will bend to the pressure asserted by victim’s rights and special interest groups that believe accusations should be treated as fact and that vigorously oppose any process that would tend to test a complainant’s accusations. It is likely then that schools will choose to employ measures that reduce due process protections to the maximum extent. Which, surprise, will likely result in more litigation.
So, to bring the baseball theme full circle, it is a big swing and a miss for the Department of Education. Rest assured however that the Title IX attorneys at Mudrick Zucker will be there to defend you and help fight your fight through a full nine innings regardless of the Department’s wild pitches.
