Last month, Department of Education Secretary Betsy DeVos released the much-anticipated revised Title IX regulations. Ever since DeVos rescinded Obama-era Title IX guidance in September of 2017, advocates for greater procedural protections in campus sexual misconduct proceedings have lobbied for reform. While certainly not perfect, the new regulations go a long way when it comes to injecting fairness into campus proceedings. Most importantly, student advisors (typically lawyers) now have room to properly represent the accused student through a misconduct proceeding.
As lawyers representing accused students in Title IX proceedings under the old regime, we operated under tight restrictions. We were gagged—not able to speak or directly advocate for students during hearings. On one hand, college policies allowed an accused student to retain an advisor; but on the other hand, the policies restricted the advisor’s ability to ensure due process for the student. For an attorney, not being able to advocate for a client is beyond frustrating.
With the proposed loosening of restrictions, the hope is that accused students can defend themselves in a system that promises to be fair and impartial to both the accuser and the accused. So, what’s different in the newly released Title IX guidance? Here are some of the highlights:
- Entitled to a live hearing with an advisor: A college student accused of sexual misconduct is entitled to a live hearing with an advisor. If the student does not have an advisor, the college or university MUST provide one aligned with that party to participate in the hearing process.
- Silenced No More! Not only is cross-examination allowed, but lawyers can now question witnesses to examine the validity of the testimony presented.
- Severe & Pervasive Conduct: Students can argue for dismissal of claims that don’t fit the definition of sexual harassment. So many times, we have been forced to defend against overly broad claims of sexual harassment that did not comport with any legal standard or, in our view, the reality of what constitutes sexual harassment. The definition has narrowed: Sexual harassment will be defined as “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” The key change is the requirement of severe and pervasive conduct. This may eliminate Title IX reports for innocuous conduct such as a glance or off-colored remark made in class.
- Clear and Convincing: Colleges may use a higher burden of proof for evaluating complaints. Schools will have the option of using the “clear and convincing” standard of proof, rather than the lower standard of “preponderance of the evidence.”
While the regulations still must pass through a 60-day notice and comment period (during which time stakeholders can voice their support for – or criticism of – the regulations), it’s anticipated that future revisions to the regulations will be minimal. At the conclusion of the formal rule-making procedures, the regulations will have the force of law, which means that lawyers can use the regulations to force colleges to ensure a fair hearing where an unbiased and impartial panel can evaluate the credibility of witnesses and the strength of the evidence presented.
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