The Department of Education is on the verge of rolling out new Title IX regulations that — if implemented as written — would be a huge setback for due process and fair procedure on campus. To explain why, a bit of background is necessary. “Title IX” refers to Title IX of the Education Amendments of 1972, a federal law that prohibits discrimination on the basis of sex at institutions receiving federal funds (which virtually all colleges and universities, public and private, do).
What is Title IX?
The text of the law itself is very brief, and most of the details of what schools must do to comply with it have been spelled out over the years in Department of Education guidance and regulations and by court decisions. Broadly speaking, one thing schools are required to do under Title IX is to act promptly and equitably in response to reports of sexual harassment, including sexual assault, that occur within their educational programs and activities. This includes reports of student-on-student sexual assault and harassment — the reason being that if a student is experiencing sex-based harassment and the school knows and does nothing about it, the school is effectively discriminating against that student on the basis of sex.
This is why every school has a “Title IX office” that adjudicates claims of sexual harassment and assault that occur between students (or between faculty, or between students and faculty, etc.) For years, these Title IX offices handled cases in a way that led many accused students to claim they had been denied a fair process. Students were often found responsible for sexual harassment or misconduct without a hearing, without getting to see the evidence against them, and without ever getting to confront their accuser — all things that are considered fundamental aspects of due process.
The 2020 Regulations
This changed in 2020, when the Department of Education passed new regulations that required schools to include important due process protections in their Title IX disciplinary procedures. Among other things, these regulations (which are still in effect as of this writing) require colleges and universities to:
- Separate the roles of investigator and decision-maker into two different people;
- Provide students with all of the evidence collected during the investigation that is directly related to the allegations; and
- Hold a live hearing where the parties, through advisors, have the opportunity to cross-examine each other and any witnesses.
These regulations have made a huge difference to how fair university Title IX processes are. When you are trying to get to the truth, particularly in a situation where there are typically no other witnesses, there really is no substitute for a live hearing where both parties’ credibility can be tested in real-time. And separating the roles of investigator and decision-maker provides a critical safeguard against allowing one person’s bias to infect a disciplinary process.
The Proposed New Regulations
Unfortunately, in a grossly misguided attempt to “protect victims,” the Department of Education is now planning to roll back these regulations and bring back the days when a single investigator can act as detective, prosecutor, judge, and jury, and decide a case without ever having to give the parties a hearing or the opportunity to confront each other or witnesses. Under the proposed new regulations:
- The “[d]ecisionmaker may be the same person as the Title IX Coordinator or investigator”;
- The parties are entitled only to a summary of the evidence, not the evidence itself; and
- No live hearing is required.
What’s more, the proposed new regulations would expand the definition of sexual harassment to include a significant amount of speech protected by the First Amendment.
Opponents of the 2020 regulations argue that they are too burdensome to victims of sexual assault — in particular, the requirement of a live hearing with cross-examination. But the reality is that these protections are critically important to both parties.
And we here at Allen Harris know. We represent both complainants (accusers) and respondents (the accused) in campus Title IX proceedings. Whether my client is someone accused of a sexual assault or someone bringing an accusation, I need these procedural protections to maximize the chance that the truth will come out. If someone sexually assaulted my client, I need to be able to cross-examine the accused at a live hearing, not just propose questions for an investigator to ask them at a meeting.
I also need to be able to see all of the evidence that the university collected, not just a self-interested university administrator’s summary of that evidence. In our practice, we have seen multiple Title IX investigations in which the administrators responsible for investigating a serious accusation of sexual misconduct suppress or mischaracterize evidence.
The proponents of the new regulations may think they are helping victims. In reality, they are just making it harder to get to the truth.
There is just one stage of review left before these regulations become final: review by the Office of Management and Budget (OMB). During the OMB review period, members of the public can schedule meetings with the OMB to provide one last round of feedback on the regulations. And today, attorneys from Allen Harris met with OMB to express our grave concerns about the threat these proposed regulations pose to free speech and due process on campus — and to accusers and accused alike.
Don’t Face a Title IX Claim Alone
One thing these regulations thankfully do not change is the fact that students going through a campus Title IX process are entitled to be accompanied by an advisor of their choice, including an attorney. And now more than ever, as protections that have ensured a fairer process over the past 4 years are on the verge of being wiped away, having an experienced Title IX attorney at your side throughout the process is critically important. If you are facing a campus Title IX case, whether as a complainant or a respondent, the attorneys at Allen Harris can help.
