Overview of the New Title IX Regulations

New Title IX Regulations

by Adam Zucker and Samantha Harris

The Department of Education just released its new Title IX regulations. These regulations, which go into effect on August 14th, 2020, are a significant step towards guaranteeing a fair process in campus sexual misconduct tribunals. For years, students accused of sexual misconduct on campus have been suspended or expelled without so much as a hearing or an opportunity to confront their accuser. These regulations are a critical step towards ensuring greater fairness. Here are some of the highlights.

1. You get to know what you are accused of before you have to answer any questions. 

Previously, a respondent might have been summoned to meet with administrators and answer questions with no information beyond “you have been accused of violating the university’s policy on sexual misconduct.” The new regulations require that the school  provide the student with a detailed explanation of exactly what it is they have been accused of doing, including “the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment … and the date and location of the alleged incident, if known.” Additionally, students must be provided this information far enough in advance to prepare for an interview.

2. You are entitled to a presumption of innocence.

Believe it or not, most schools do not explicitly state that accused students are presumed not responsible until proven responsible: according to a recent survey by the Foundation for Individual Rights in Education (FIRE), more than two-thirds of top colleges and universities did not include a presumption of innocence in their sexual misconduct policies. Under the new regulations, the notice a student receives “must include a statement that the respondent is presumed not responsible for the alleged conduct.”

3. You get to see all of the relevant evidence.

Schools often allow accused students to see only the evidence the investigator used to make his or her decision, leading to case after case in which schools withheld critical exculpatory evidence that accused students could have used to prove their innocence. Now, schools have to give students the right “to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint.”

4. You get a live hearing with cross-examination. 

The new regulations prohibit the “single investigator” model used by so many schools. Instead, students must be given a live hearing at which they have the right – through an advisor of their choice – to cross-examine the other party and any witnesses. The importance of this provision cannot be overstated. Most campus sexual misconduct cases turn almost entirely on the credibility of the two parties, and without cross-examination, a meaningful credibility assessment is almost impossible. That’s why the Supreme Court has called cross-examination “the greatest legal engine ever invented for the discovery of truth.”

5. The university has to use unbiased training materials- and you get to see them. 

This is huge. One of the dirty little secrets of the campus sexual misconduct process is that many universities train investigators and adjudicators using biased materials that encourage them to overlook inconsistencies in a complainant’s story or that use prejudicial language, referring to the complainant as a “victim” before the case has even been decided. The new regulations prohibit this, requiring universities to use training materials that do not “rely on sex stereotypes” and that “promote impartial investigations and adjudications.” They also require that every university “must make these training materials publicly available on its website” – no more secrets.

6. You cannot be charged with retaliation for exercising your First Amendment rights. 

Schools may no longer charge a student with retaliation for discussing their case publicly.   Previously, schools often imposed ‘gag orders’ on students, prohibiting them from speaking with others, on- or off-campus, about their case. This often made it challenging for a student to conduct their own investigation by impeding their ability to seek out witnesses or facts to support their case. Now, students will be free to talk to witnesses and others about their case and obtain information supportive of their position without fear of additional charges.

7. Adjudicators must explain their decisions.

Under the old system, the university would often make critical decisions about the case without any explanation to the parties, leaving students to guess (and giving administrators a wide berth to abuse their discretion). Under the new regulations, the decision-maker is required to issue a detailed written description regarding responsibility, which includes not only a finding of responsible or not responsible, but also their rationale for the finding. And those responsible for determining the relevancy of cross-examination questions are required to explain to a party’s advisor any decision to exclude a particular question as irrelevant.

8. The preponderance of the evidence standard is no longer required.

The standard that was previously required by the Department of Education, and is currently employed by a vast majority of schools, is a preponderance of the evidence. This is the lowest standard in civil law and is often referred to as 50% and a feather, meaning that something is only more likely than not. The new regulations allow schools to select whether they will use the preponderance standard or the more reasonable clear and convincing evidence standard, which means that the evidence is highly and substantially more likely to be true than untrue. While many schools will still opt for the preponderance standard, at least due process advocates can now engage universities in a dialogue about the respective merits of these two standards.

9. You have the right to appeal a school’s determination.

While most schools do offer an opportunity to appeal, not all do. Under the new regulations, a school must offer both complainant and respondent the opportunity to appeal either a finding of responsibility or a dismissal of the complaint on the following grounds:

1. Procedural irregularity that affected the outcome of the matter. This means if you believe your due process rights were violated at your hearing, you will have the opportunity to raise that on appeal.
2. New evidence that was not reasonably available at the time the determination was made that could affect the outcome of the matter.
3. That the school personnel involved in the process had a conflict of interest or were biased such that it affected the outcome of the matter.

While these three grounds for appeal are required, the school may also offer additional grounds equally to both parties (for example, that a sanction was unduly harsh or lenient.)

10. Schools have the right to offer mediation.

For many years, the only choice for a complainant in a case involving allegations of physical sexual misconduct was to go through a formal resolution process, which could lead to the suspension or expulsion of the respondent. This was the case even when complainants would have preferred some sort of mediation or other informal process that was more restorative and educational than punitive. The new regulations allow for the parties to choose an informal resolution process, so long as that choice is truly voluntary on the part of both parties. This allows schools and parties more leeway to respond to cases in an individualized manner, based on the severity of the conduct at issue and the wishes of the parties.

We will be providing a more in-depth analysis of these regulations in the weeks and months to come. In the meantime, if you have any specific questions about how these regulations might affect you, please don’t hesitate to reach out to us.