A Synopsis of New Title IX Rules that Strengthen Due Process for Accused Students

In May 2020, the United States Department of Education issued New Title IX regulations that strengthen the due process rights of students involved in university sex discrimination investigations.

Key provisions of the Department of Education’s new Title IX regulation:

  • Defines sexual harassment to include sexual assault, dating violence, domestic violence, and stalking, as unlawful discrimination on the basis of sex
  • Provides a consistent, legally sound framework on which survivors, the accused, and schools can rely
  • Requires schools to offer clear, accessible options for any person to report sexual harassment
  • Empowers survivors to make decisions about how a school responds to incidents of sexual harassment
  • Requires the school to offer survivors supportive measures, such as class or dorm reassignments or no-contact orders
  • Protects K-12 students by requiring elementary and secondary schools to respond promptly whenany school employee has notice of sexual harassment
  • Holds colleges responsible for off-campus sexual harassment at houses owned or under the control of school-sanctioned fraternities and sororities
  • Restores fairness on college and university campuses by upholding all students’ right to written notice of allegations, the right to an advisor, and the right to submit, cross-examine, and challenge evidence at a live hearing
  • Shields survivors from having to come face-to-face with the accused during a hearing and from answering questions posed personally by the accused
  • Requires schools to select one of two standards of evidence, the preponderance of the evidence standard or the clear and convincing evidence standard – and to apply the selected standard evenly to proceedings for all students and employees, including faculty
  • Provides “rape shield” protections and ensures survivors are not required to divulge any medical, psychological, or similar privileged records
  • Requires schools to offer an equal right of appeal for both parties to a Title IX proceeding
  • Gives schools flexibility to use technology to conduct Title IX investigations and hearings remotely
  • Protects students and faculty by prohibiting schools from using Title IX in a manner that deprives students and faculty of rights guaranteed by the First Amendment