People fighting for greater fairness and due process in campus Title IX proceedings have waited nearly two years for the United States Department of Education’s Office for Civil Rights to issue formal Title IX regulations. At long last, on May 5, 2020, the regulations arrived. School administrators, students and families, and attorneys all over the country no longer have to hold their breath. Or do they?
Spanning 2033 pages, the regulations usher in a long overdue seismic shift in the campus Title IX landscape. Kangaroo courts in which one person serves as the investigator, judge, and jury are a thing of the past. Students are now entitled to robust notice of the allegations after a complaint has been filed. Colleges and universities are now required to hold live hearings. Not only are live hearings required in post-secondary institutions, attorneys serving as student advisors are no longer proverbial potted plants. The regulations permit, and encourage, attorneys or other selected student advisors to cross-examine parties and witnesses to test their credibility. By allowing attorneys to take on a more active role in the Title IX process, students with disabilities are afforded greater protections and accommodations, which is vital since these students often struggle just to stay in school, much less take on the role of self-advocate.
Accused students now have at least a semblance of relief if an accuser chooses to report a crime to law enforcement. Schools can delay investigations for “good cause,” the most notable of which is a criminal investigation. Moreover, educational institutions are required to conduct an objective evaluation of evidence, including both inculpatory and exculpatory evidence. If law enforcement investigates a claim and chooses not to pursue criminal charges, this decision alone is incredibly powerful evidence to consider in a campus proceeding. And, accused students enjoy a presumption of innocence. Adding this presumption is an essential shift from the prior regulatory guidance.
Colleges and universities must treat both complainants and respondents equitably. Throughout the Title IX process, schools are required to provide supportive measures for both students. Such measures may include counseling services, providing a student with a campus escort, changing housing and class assignments, and increased security. Additionally, if a student does not have an advisor present for a live hearing, the school must provide, free of charge, an advisor of the school’s choice who may be an attorney. Further, hearings must be recorded and a transcript must be made. At last, students who wish to appeal a finding will have access to an actual evidentiary record.
These changes are long overdue and monumental. The new regulations endeavor to create a process that is fundamentally fair. Lawyers will no longer have to sit idly by and watch students struggle to articulate arguments and pre-drafted questions. Lawyers can deliver lines of questioning designed to test credibility and help discern the truth. Lawyers can do what lawyers do: advocate. To say the least, we are thrilled about the new regulations.
At the same time, we cannot help but question the Department of Education’s decision to release the Title IX regulations in the middle of a global pandemic. Colleges and universities are struggling to stay afloat. They are searching for answers to tough questions, like how they will survive if they cannot open their doors in the fall. And, if they do open, will insurance cover the worst case scenario of a student or employee death due to COVID-19? How will schools contain the virus if and when it hits a dorm or lecture hall? How will schools socially distance classes and events? How will schools enforce all of these new rules?
Aside from these grueling questions, how will schools fund and implement the student advisor requirements? Schools need to identify individuals capable of serving as advisors and then provide the necessary training so that the advisor can serve in a meaningful capacity. Are schools now required to run legal aid offices? Will schools find the answers to these questions and successfully reshape Title IX policies and procedures before August 14, 2020, when the regulations are scheduled to take effect?
If timing is everything, the release of these regulations could not have come at a worse time. Amid sheltering in place and uncertainty about the creation of a vaccine to protect us, even more has arrived for schools to navigate. While colleges and universities are defending class actions demanding tuition and housing refunds and figuring out how to pay professors and administrators while keeping class sizes manageable, they must also navigate important and highly complicated regulatory demands – demands that are both financially and logistically challenging. Many smaller, less endowed colleges may collapse under the pressure. Larger institutions may have to make difficult cuts and adjustments to their operating procedures and offerings to students who, understandably, want a “normal” pre-COVID-19 college experience.
Make no mistake, after years of lobbying for change, we are beyond grateful for the new Title IX regulations. For years, in a battle to protect the rights of accused students, lawsuits have been filed arguing that past policies violated Title IX, schools failed to follow its own policies, and administrators violated notions of basic fairness and good faith and fair dealing when adjudicating complaints. Lawyers and grass roots organizations alike have argued from the rooftops for change. Fortunately, the regulations go a long way to afford students due process and fairness when confronted with the prospect of having their entire education and future derailed.
Changes in Title IX proceedings are imperative. Putting students through any disciplinary process devoid of procedural protections and fairness is untenable. However, fast tracking the implementation of these regulations could lead to greater problems and jeopardize what so many have fought so hard to achieve. To overhaul campus Title IX proceedings in a way that creates a truly fair process, the implementation must be skillfully executed. While schools still face uncertainty about whether students will be returning to campus this fall, we question their ability to pull off these changes. But they must. Great regulations, bad timing.
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