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

Lawrence Property Tax Appeals

Many Lawrence homeowners recently found out their property taxes have increased significantly.  Some properties jumped 20%, leaving affected families with a large, unexpected cost added to their yearly budget.

Commercial properties were also hit hard, leaving businesses scrambling to generate additional revenue needed to balance their books.

So what can you do?

Petefish attorneys have assisted clients by appealing Douglas County’s valuations, and lowering the appraisal value of their property, which in turn reduces the property tax owed to the county.

The process involves initiating the appeal within applicable time limits, and providing information that will support the client’s position, which can include: comparable sale, lease, or capitalization data; listing information for sale of the property; pending sale offers; any paid appraisal of the property; cost estimates regarding maintenance; and other documentation that supports a decreased valuation.  Once the county reviews the information submitted by the property owner, a hearing will be scheduled with the Douglas County Appraiser’s Office.

Contact a Petefish attorney today to discuss whether a property tax appeal makes sense for your commercial or residential property.

College Students Accused of Misconduct Deserve Greater Due Process According To U.S. Department of Education

When most people hear the term “Title IX,” they think of the law that requires universities to offer comparable athletic opportunities for both male and female students.

However, since 2011, Title IX has been in the news for a far different reason.  It all started with the Obama administration’s “Dear Colleague” letter, which told universities that receive federal funding to crack down on matters of sexual misconduct on campuses, under the auspices of upholding language in the law that prohibits discrimination in any educational program on the basis of sex.  The letter mandated that the lowest possible standard of proof should be used by the university in deciding whether a sexual offense has been committed, and to accelerate the final decision to within 60 days of receiving a report.

Faced with either complying with the directives or losing federal funding, universities began “throwing the book” at those accused of sexual misconduct on campus.  And those accused are overwhelmingly male.

On September 22, 2017, the “Dear Colleague” letter was revoked by the U.S. Department of Education, and replaced with new guidance that includes allowing universities to apply a heightened standard of review, “clear and convincing evidence.”

Despite the recent changes, many legal scholars still feel that most universities’ student affairs staff are poorly equipped to handle such matters, and that those accused are being deprived of their Due Process rights.

Often, the university employee who is conducting the relatively limited investigation is the same person who decides innocence or guilt, and the same person who imposes sanctions, up to expulsion. Other universities may employ a hearing panel to decide matters that may involve suspension or expulsion. And in most cases, the employees are not trained in the law, yet are armed with the authority to take away a student’s right to an education.  Although the Department of Education has withdrawn the 2011 Dear Colleague Letter, universities may still operate using the lower standard of proof required by the 2011 Dear Colleague Letter.

The attorneys at Petefish Law have experience defending students unfairly accused of misconduct in colleges and universities.  Before you agree to speak to the university “investigator,” contact our office to schedule a consultation, so we can protect your rights and keep you on track to get the degree you are working for.

KU Judicial Panel Disagrees with Student Affairs, Vacates Sanctions Against Student

After a recent hearing before the University of Kansas Judicial Board Appeals Panel, the panel issued its decision agreeing with arguments presented by Petefish associate Matt Donnelly, and reducing sanctions that had previously been imposed by KU against Donnelly’s client, an undergraduate student.

The sanctions were imposed by KU’s Office of Student Affairs based on an alleged violation of KU’s Non-Academic Misconduct Policy.  The sanctions included requiring the student to undergo a psychological assessment, which the student had to pay for out-of-pocket.  Additionally, if the student did not agree to the psychological assessment and provide a letter from the provider confirming completion, KU would not allow the student to enroll in the subsequent semester.

That sanction was deemed improper by the panel, and contrary to University Senate Rules & Regulations which state that KU’s discretion is abused “if it is based on improper considerations, entirely fails to consider an important aspect of the problem, or lacks a plausible explanation of the connection between the facts found and the recommendations made.”

The panel’s decision has allowed the student the peace of mind to resume studies, while at the same time protecting the private information of the student.

Human Resources Professionals Receive Warning from DOJ and FTC

Recently, the Antitrust Division of the Department of Justice and the Federal Trade Commission released guidance to alert Human Resources professionals that it is against the law for an employer to agree to fix wages or to agree not to hire another company’s employees. Both of these situations are deemed illegal under antitrust laws, and violation of the rules could lead to criminal prosecution. These policies are being highlighted to ensure that workers receive the benefit of free-market competition for their services, in the same way that companies are prohibited from fixing prices on consumer goods. Some legal professionals are calling this “a major policy shift,” and warning HR professionals to be careful when even discussing limiting employee compensation or recruiting. To find out more, contact an experienced employment law advisor at Petefish Law.

Fair Labor Standards Act – Federal Lawsuit

On November 22, 2016, just 10 days before a new law expanding overtime pay to millions of workers was to take effect, a federal judge in Texas halted the implementation of the Fair Labor Standards Act’s so-called Final Rule.

Twenty-one states, including Kansas, joined in a federal lawsuit seeking an emergency preliminary injunction to stop the Rule, arguing that the Department of Labor exceeded its authority by doubling the salary threshold for exempt employees from $23,660 to $47,476 per year. The Rule also required automatic adjustments to the salary threshold every three years moving forward.

The lawsuit was joined by the US Chamber of Commerce and numerous other business groups including the Texas Association of Business, National Automobile Dealers Association, the National Association of Manufacturers, National Association of Wholesaler Distributors, National Federation of Independent Business, National Retail Federation, and more than 50 other national businesses and organizations from around the country.

So what does this mean for employers? For now, employers may continue to follow the existing overtime rules until a ruling is made by the federal judge. The preliminary injunction that is now in place is not permanent – it just preserves the status quo until the court makes a final decision. But the judge would not have granted the preliminary injunction unless he found that the plaintiffs had a substantial likelihood of prevailing on the merits of the lawsuit, so it seems a good possibility that the Final Rule will at least be amended in some respects.

Stay up to date on the lawsuit and its impact on your business, your employees, and your bottom line by contacting one of our skilled advisors at Petefish Law.

Petefish Attorney Wins Gold!

Winemaking Award

Petefish attorneys have some interesting hobbies.  Petefish partner Rick Hird and his wife, Debby, and son, Scott, own Wild Hare Vineyard at their property in rural Baldwin.  They primarily sell grapes to local wineries, but Rick and Scott are also amateur winemakers.  They received favorable comments about their wines from area winemakers, but wondered how they might stack up with others on a broader scale.  So, Wild Hare Vineyard entered its first wine competition in July, with the modest goal of getting some helpful feedback from the judges.  However, the results were quite surprising.

In its very first attempt in a wine competition, the Wild Hare 2012 Norton won a Double Gold Medal at the 2015 Indianapolis International Wine Competition.  To put it in perspective, out of 2,100 wines entered in the competition, 140 received Double Gold.  The Hirds were thrilled to receive the unexpected award!

To see all of the results:

Dedicated Attorneys in Lawrence, Kansas

Petefish, Immel, Hird, Johnson, Leibold & Sloan, LLP has been providing high-quality attorney services in Lawrence, Kansas and the surrounding area for nearly 100 years. Whether it is a real estate or construction dispute, a business transaction, estate planning, criminal defense, Title IX or other higher education-related proceeding, or many other legal matters, Petefish is committed to providing professional legal solutions with a personal touch.