After much anticipation, the Department of Education has released its new Title IX rules governing campus sexual misconduct proceedings. These new rules, which are more than 2,000 pages long, bring much‑needed fairness to campuses. We have been advocating for Title IX reform for years and testified before the Department of Education in September 2018 about the pressing need for change. Now, after more than two years and 120,000 comments, change has finally come.
Although we will be doing a deeper dive on these new rules, it is important for students and their families to know the highlights.
First, we are thrilled to see that students accused of sexual misconduct are now entitled to live hearings with the right to question their accusers. Also, they now have the right to have counsel ask the questions on their behalf. When a young adult’s reputation, career prospects and tuition are on the line, they deserve due process and meaningful legal representation.
In the past, students accused of sexual misconduct and facing expulsion were not guaranteed the right to a hearing, or even the ability to suggest questions to their accusers. Moreover, for those students who could ask questions at live hearings, their attorneys could be little more than potted plants. Although we were able to prepare our clients, attend the hearing and pass them notes, we had to be mute as our teenage clients were stuck asking the most important questions of their lives. This rule change is by far the most important in protecting students’ rights.
Second, the rules amend the definition of sexual harassment and expand the scope of who can file a complaint. Sexual harassment is now limited to misconduct that is “so severe, pervasive, and objectively offensive” that it effectively denies a student access to the school’s education programs. The rules also add dating violence, domestic violence and stalking to the definition of sexual harassment. In conjunction with this change, any person can now file a harassment complaint on behalf of someone else, even if they are not involved in or witness to the harassment. These changes help protect students from being found responsible for frivolous sexual harassment claims while at the same time providing an avenue for claims to be made when a student is too scared to report on their own, particularly high school students.
Finally, the new rules clarify that Title IX applies to all sexual misconduct that occurs in the United States. It no longer is relevant if the conduct occurs on or off campus, so long as there is some nexus to an educational program or activity. As we’ve previously discussed, covered activities can occur in a dorm, a frat house, an off-campus apartment or even over Zoom. Although study abroad programs aren’t covered under these new Title IX rules, we anticipate that universities will create new policies specifically governing study abroad programs.
We are entering a brave new world where students are finally getting the due process rights and protections they deserve under Title IX. We will be doing deeper dives on the Department of Education’s new rules, and we know that there will be many missteps by colleges and universities in complying with these new requirements. If you would like more information about these new rules and the Title IX process, please contact Student & Athlete Defense / Title IX attorneys Susan Stone (scs@kjk.com or 216.736.7220) or Kristina Supler (kws@kjk.com or 216.736.7217).
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