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The Department of Education Proposes New Title IX Requirements For Colleges: Five Notable Changes

By: Kyle Dudek, Esquire and Robert Shearman, Esquire

Title IX requires colleges and universities receiving federal funding to conduct a “prompt, thorough, and impartial” investigation into any allegation of rape or sexual assault on campus. If the school finds that harassment occurred, administrators must stop the behavior, prevent its recurrence, and remedy its effects on the victim – including, if needed, by disciplining the harasser.

Designing a sufficiently fair and appropriate structure for sexual misconduct proceedings has long been a challenge for college officials. Much of this trouble stems from a lack of guidance. Title IX has only required the “prompt and equitable resolution” of student complaints. The Department of Education has largely left it to each school to design grievance procedures that meet these broad goals. The result has been predictable – civil lawsuits, by both the accused and accuser, alleging a failure to adequately investigate and respond to complaints of sexual harassment or assault.

Things are about to change. The Department of Education has proposed regulations that will help narrow and clarify a college’s responsibility for adjudicating sexual misconduct claims. Here are five changes to take note of:

Right to Cross Examination

Prior guidance by the Department of Education discouraged cross-examination of the complainant because of its potential to retraumatize victims. Now, colleges must give students the right to cross-examine each other, as well as any assembled witnesses. The questioning must be done in a live hearing by a lawyer or other adviser, but the parties may be in separate rooms, using technology if needed.

Student Advisor

Students involved in a complaint, including both the accuser and accused, must be provided an advisor if otherwise unrepresented. The Title IX process is invariably complex, time-consuming and emotionally draining – students on both sides are often ill-equipped to navigate the procedural and substantive components. Apart from simply providing guidance, an advisor will be allowed to ask questions and present evidence at any disciplinary hearing.

Narrower, Objective Definition of Sexual Harassment

The new regulations would define sexual harassment to include “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” Prior guidance from the Department of Education defined harassment in much broader terms – as “unwelcome conduct of a sexual nature.”

Burden of Proof

When adjudicating claims of sexual assault, prior guidance required colleges to adopt a “preponderance of the evidence” standard, which means that it’s more likely than not that the misconduct had occurred. The new rules would change this from a requirement to an option. Colleges could keep the minimal standard or adopt a higher “clear and convincing evidence” threshold.

Campus Limitation

As currently written, the new rules would limit a college’s responsibility to cases in which the alleged incident happened on campus or within an educational program. Sexual misconduct off campus, even if between students, could be left to law enforcement. Of course, schools could continue to offer support services or intervene with a student conduct proceeding if a reported incident happened outside of that scope.

Take-Away

The public now has sixty days to comment on the proposed regulations. But regardless of this comment window, we anticipate a dramatic shift in Title IX requirements will result. Colleges and universities should monitor the final regulations and be ready to implement new training as needed.