May 26, 2020

New Title IX Regulations: Fairness & Due Process Added to a Flawed System

On May 6, 2020, the U.S. Department of Education released the much-awaited final regulations overhauling how school disciplinary matters involving sexual harassment, including sexual assault, under Title IX will be handled. While the new Title IX regulations do not take effect until August 14, 2020, there are some exciting new provisions which will make Title IX proceedings more fair, equitable and provide Due Process for all.  See some of the major provisions discussed below.

University Building
University Building

Consistency to the Process

The advent of regulations has provided a clear and consistent framework that all schools who receive Federal financial assistance must follow.  Prior to this, there were few rules concerning the handling of Title IX complaints. The guidance provided by the U.S. Department of Education was ambiguous at best and the case law was limited.  The process for resolving Title IX comProcess Diagramplaints varied widely by school, including different requirements for public schools and private schools.

Jurisdiction Clarified

The new regulations provide a clear statement concerning the jurisdiction of Title IX complaints.   As always, Title IX only relates to schools which receive Federal financial assistance.  However, for practical purposes this is most schools in the United States.  The new rules clarify which types of educational programs and activities fall under the jurisdiction of Title IX.

  • Educational programs or activities at locations, events or circumstances over which the school exercised substantial control over both the respondent and context in which the alleged incident. This includes school owned buildings, as well as those controlled by officially recognized student organizations, such as fraternities or sororities.
  • Can relate to programs and activities both on and off campus.
  • Applies only to incidents of sexual harassment / discrimination “occurring against a person in the United States.”
  • At time of formal complaint, the complainant / accuser must be participating in or attempting to participate in the education program or activity where the complaint is filed.

The obvious import of the new regulations is to restrict the process to those who are current students when the complaint is filed and for incidents occurring in the United States.  This appears to be in line with the purpose of Title IX which is to protect equal access to education.  If the accuser is not a current student of the college or university at the time of the complaint, the protection of their equal access to education is not in peril.

Beware – No Title IX Jurisdiction Does Not Necessarily Mean No Discipline

One caveat in the new regulations is that although an incident may not be within the jurisdiction of Title IX, that does not mean the school is powerless to act.  Colleges and universities may address sexual harassment affecting its students or employees that fall outside of Title IX’s jurisdiction in any manner they choose, including pursuing discipline.  This appears to be a double-edged sword.  Although there may not be a Title IX complaint, the accused may be subject to a disciplinary process which does not contain all of the protections contained within the new regulation, as discussed below.

Protecting Constitutional Rights & Legal Privileges

Law BooksSchools cannot restrict the Constitutional rights of students, teachers or faculty, including those provided by the First Amendment, Fifth Amendment and Fourteenth Amendment, or intrude on legally recognized privileges:

  • Speech which falls under First Amendment cannot form the basis of a Title IX Complaint even where such speech is offensive.
  • Parties cannot be restricted from discussing the allegations or gathering evidence (no “gag” orders).
  • Parties may never be subject to further discipline for “retaliation” for exercising their First Amendment rights of free speech.
  • Respondent presumed to be not responsible throughout process (Presumption of Innocence).
  • Parties cannot be compelled to provide incriminating evidence against themselves.
  • Due Process through a live hearing at which all parties and witnesses subject to cross-examination (discussed in greater detail below).
  • Schools may not rely upon or seek disclosure of information protected under a legally protected privilege (medical, psychological, priest, attorney, etc.), unless the person holding the privilege freely and voluntarily waive it in writing.

Equal Access to Information

Both parties now have equal access to information throughout the investigation.  The school will be required to provide to all parties and their advisors:Title IX Investigation File

  • Written notice of the allegations with sufficient detail of the conduct constituting sexual harassment and allow the accused sufficient time before being required to provide any response.
  • Written notice of any investigative interviews, meetings or hearings.
  • Prior to the completion of the investigative report, copies of all evidence directly related to the allegations, even if the investigator does not intend to use it in making their determination, with at least 10 days to review and respond.
  • Copies of all investigative reports which fairly summarize the evidence and allow at least 10 days to provide a response.
  • Training materials for all Title IX personnel concerning new grievance procedures and how to serve impartially (must be on school’s website or otherwise accessible to public).

Under prior practice, very little information was required to be given to the accused before making them provide a response and/or meet with an investigator.  Schools were not required to turn over any of the statements of the accuser or witnesses.  In many instances, only if the investigator chose to include some portion of this information in their report would the accused ever know of its existence.

Live Hearings with Cross-Examination

Under the current Title IX grievance process, many schools do not have any type of live hearing, opting instead for some version of what is known as the “single investigator” model.  In this model, the school’s investigator decides:

  • Who to speak with and what documents to obtain;
  • Credibility and how much weight to give any evidence;
  • Whether they find the accused responsible; and
  • In some cases what sanction is appropriate.

The investigator’s finding is generally rubber-stamped buy the Title IX Coordinator.  For those schools that do have some type of live hearing, it often amounts to little more than a formality.

Judge's GavelUnder the new Title IX regulations, all colleges and universities must have a live hearing, with decision-maker(s) (i.e. hearing panel, judge, etc.) who cannot be either the school’s investigator or Title IX Coordinator.  Effectively eliminating the “judge, jury and executioner” days of the single investigator model.  Some of the more important requirements of the hearing include:

  • Give all parties an equal opportunity to present both fact and expert witnesses, as well as any other inculpatory or exculpatory evidence;
  • Live oral cross-examination, including relevant follow-up questions to be asked by the party’s advisor to any other party or witness;
  • If a party or witness does not submit to cross examination, the decision maker(s) cannot rely on any statement of that person in reaching a determination regarding responsibility.
  • School must create a record of the live hearing, which can be either audio, audiovisual or a transcript.
  • Following the hearing the decision-maker(s) must issue a written decision, which must include:
    •  Finding as to whether respondent is responsible for the charges;
    • Findings of fact and conclusions about whether the conduct occurred;
    • Rationale relating to each allegation;
    • Any disciplinary sanctions to be imposed; and
    • Any whether any remedies will be provided to the complainant.

This article does not address all of the provisions of the new Title IX regulations.  Just some of the major ones which we believe will be a game-changer going forward to protect the rights of the accused and provide a fair and equitable process for all in the Title IX grievance process.

At Contant Law we strive to guide students, faculty and staff through the stressful and difficult  process of being accused of a Title IX violation.  Please contact us with any questions or for additional information.

 

 

 

 

 

 

 

 

 

May 20, 2020

New Legal Protections from Eviction

In response to the dramatic economic consequences of Covid-19, Governor Baker signed the Massachusetts Eviction and Foreclosure Moratorium Act. This act prevents evictions and foreclosures, except for emergency evictions, for 120 days beginning April 20, 2020.

What this Means for Renters

If you rent your home, you cannot be evicted for failure to pay rent, or causes that are not “emergency causes of action”. Emergency evictions are defined as, “Any eviction that involves allegations of criminal activity or lease violations that are detrimental to the health and safety of other residents, health care workers, emergency personnel, anyone who is lawfully on the property, or the general public.”

As long as you are being a law-abiding and responsible tenant, you cannot be evicted for non-payment of rent during these challenging financial times. You will still owe your landlord all the back rent and should make arrangements with them now, so they are clear that you have a plan to catch up on the rent when the moratorium ends. They have maintenance and upkeep of the property and may have a mortgage to pay on it as well, so there is financial hardship for them, too.

What this Means for Homeowners with a Mortgage

The act prevents mortgage holders from initiating any foreclosure procedures, publishing a foreclosure sale or exercising a power of sale or right of entry. Residential borrowers who submit a request to their lender during the moratorium stating that they experienced “financial impact from COVID-19” will be granted a reprieve from all fees, penalties, and interest beyond their scheduled and contractual payments for up to 180 days.

Lenders may not report negative mortgage payment information for late or missed payments during this time to a consumer reporting agency. The Act’s moratorium also allows for mortgage counseling by video conference, rather than in person, during the moratorium.

As with rent payments and collections, the Act explicitly states that no borrower is relieved of their obligation to pay their mortgage, and no creditor or mortgagee is restricted from ultimately recovering mortgage payments

What this Means for Small Business Owners who rent their property

A “small business premises unit” is property occupied by a tenant for commercial purposes, whether the tenant is a for-profit or not-for-profit entity. However, the definition is limited. Tenants who operate in multiple states, operate in multiple countries, are publicly traded or have 150 or more full-time employees are not included in the definition of a “small business premises unit.”

If your small business qualifies as a small business premises unit based on the above definition and exclusions then, just as with residential tenants, you cannot be evicted for failure to pay rent, or causes that are not “emergency causes of action”.

It is important for small business owners to note that the Act’s moratorium does not include evictions of tenants in a small business premises unit if the lease expires or a tenant’s default under the terms of its lease or tenancy that occurred before the Governor’s emergency declaration.

The Act does not cover borrowers or lenders of any commercial property.

What You Need to Do

You will still owe the money to your landlord or mortgage holder. You need to communicate clearly, in writing, with your landlord or mortgage holder your situation and make arrangements to pay the money you owe over that time.

These are challenging times for everyone. The Massachusetts Eviction and Foreclosure Moratorium Act is an effort to provide time and peace of mind to address financial issues without worrying about losing your home. We will all get through this together.

What to Do if Your Landlord or Mortgage Holder Violates this Act

You are protected from eviction or foreclosure for 120 days starting April 20, 2020. If eviction or foreclosure proceedings are begun against you, get help. You can reach out to the Massachusetts’ Attorney General’s Office and if their assistance does not stop the eviction or foreclosure, then get legal help. Contact Contant Law. Call or text us at 617-227-8383.

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May 6, 2020

Bicycle Accidents: What to Know

Finding opportunities to stay fit while we are striving to follow the stay home advisory is not always easy. Gyms and fitness studios are closed, online workouts are not for everyone and even on a walk down Main Street, keeping 6 feet apart can be challenging. Balancing the challenge with the need to get out of the house or to get the kids moving and burning off their excess energy may have you lacing up your running shoes or putting air in the bike tires on a nice sunny day.

Even with fewer cars on the road, though, you must be careful of the risks of running on the roads. It is important to teach young children the right way to walk and ride on roads. If you need a refresher on bike rules you can read more here.

Once out on the roads, if you find yourself in an accident, there are things you should do. If the accident is minor, you should gather important information about the scene and the driver and share your information with them. Review our article “Information to Gather at an Accident Scene” to help you and seek legal help if you require it.

Unfortunately, accidents involving bicycles or pedestrians and automobiles can leave the cyclist, walker or runner with serious injuries. If you find yourself seriously injured by a negligent driver while you were cycling, running or walking, we can help you obtain the compensation you deserve. Read more about bike accidents to find how we can help you if you are injured.

If you find yourself in a bicycle or pedestrian accident and you are in need of legal help, contact us. Contant Law is available to guide you through the legal process and ease your mind. Call or text us Contant Law 617-227-8383.

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