May 26, 2020
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.
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 complaints varied widely by school, including different requirements for public schools and private schools.
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
Schools 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:
- 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.
Under 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.