Last week, Secretary DeVos and the Department of Education released the long-awaited final Title IX regulations. These new regulations are meant to restore due process protections in campus sexual misconduct proceedings and replace the Obama Administration’s April 4, 2011 “Dear Colleague” letter.
The new regulations are a significant step forward for the rights of accused students. They apply to all education institutions who receive federal funding, expanding their reach to include elementary and secondary school as well as colleges and universities. Applicable educational institutions must be in compliance with the new rules by August 14, 2020.
4 Big Changes to the Title IX Regulations
So, what do these new regulations do? Let’s dig into these bigger shifts in policy to see where and how the new regulations affect due process:
Provides uniform definitions of common acts of sexual misconduct.
Significantly, the regulations define “sexual harassment” as conduct on the basis of sex that: 1) amounts to quid-pro-quo harassment; 2) that is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to” the school’s educational program or campus activity; 3) or is sexsual assault, dating violence, domestic violenct, or stalking. The regulations draw from other federal laws (the Clery Act and the Violence Against Women Act) to define “sexual assault,” “dating violence,” “domestic violence,” and “stalking.”
To read more about these specific definitions, the full text of these updates can be found here: Federal Register
And a summary can be found here: https://www2.ed.gov/about/offices/list/ocr/docs/titleix-summary.pdf
Makes clear when a report of sexual assault must be investigated by the Institution.
Action taken in response to an allegation is limited to incidents that occur “in an education program or activity.” Education program or activity includes locations, events, or circumstances over which the school exercised substantial control over the accused student as well as the context in which the alleged harassment occurred.
It also includes buildings owned or controlled by an officially recognized student organization, such as a fraternity or sorority house. This is a marked change from the places and spaces where charges could be brought in the past, which often broadly included any off-campus location or activity where the alleged incident took place.
Additionally, the new regulations allow postsecondary institutions (colleges and universities) to choose whether to have mandatory reporting for all employees, or to designate some employees to be confidential resources without automatically triggering a report to the Title IX office. This means that counselors, coaches, and advisors, who often serve as a confidant to many students, may not be required to report allegations of sexual misconduct. Action is still required in all instances where the College or University has actual knowledge or where a formal complaint is filed.
Sets out clear requirements that must be followed in any Title IX investigation.
Complainants and respondents must be treated equitably, including support for complainants, notice and a grievance process before the imposition of any disciplinary sanctions against a respondent, and broader information sharing to both sides. The regulations mandate an objective evaluation of the relevant evidence (including both inculpatory and exculpatory evidence), and require an opportunity for a live hearing and cross-examination of all parties and witnesses.
This differs from what was previously happening at many colleges and universities, where only limited information was provided to accused students, and there was no right for the complainant to be subject to cross-examination. Additionally, in the past an accused student could be suspended before a hearing and before their legal representative could conduct an investigation.
Ensures that students accused of sexual misconduct are presumed not responsible until such time as they are found responsible following a fair process.
This includes providing the respondent with sufficient details of the allegations and sufficient time to prepare a response before they are interviewed by a Title IX investigator. Previously, an accused student would often be told the details of the allegations against them during or even after the interview, depriving them of the opportunity to review the allegations with a legal representative before making a potentially incriminating statement.
Now, while you may still be suspended during an ongoing investigation, the school must FIRST provide detail about the allegations and provide an opportunity to immediately challenge the suspension. Additionally, the new regulations clarify that both the complainant and the respondent have equal access to education, which may encourage colleges and universities to provide accommodations instead of interim suspension.
What do the new regulations NOT do?
Now that we’ve talked about the changes we have seen, it’s important to call out one piece that has not.
Define Consent
The new regulations specifically state that they “do not require Educational Institutions to adopt a particular definition of consent with respect to sexual assault.” This means that each Institution will continue to have their own definition of “consent.”
If you or a loved one has been accused of sexual misconduct on campus, you need an attorney who will fight for your rights. The attorneys at Dysart Willis Houchin & Hubbard are ready to take your call.