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

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.