In May the U.S. Department of Education announced major changes to how colleges are required to handle Title IX sexual assault and sexual harassment complaints. Generally, the new Title IX requirements provide more protection for to the due-process rights of the accused student or employee. According to U.S. Secretary of Education Betsy DeVos, “[t]his new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process.”
What is Title IX?
Title IX, a federal civil rights law, passed as part of broader education legislation in 1972. Essentially, the law prohibits sex discrimination in educational institutions that receive Federal funding (the vast majority of schools). It states that:
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Under Title IX, schools are legally required to respond and remedy hostile educational environments. The failure to do so is a violation that means a school could risk losing its Federal funding.
Notable New Title IX Requirements
Experts believe the most significant changes are that colleges must hold live hearings and allow cross-examination when adjudicating sexual-misconduct complaints. Other notable Title IX changes include:
- Colleges can decide whether to use a “preponderance-of-evidence” or “clear and convincing” standard burden of proof that a violation occurred. Previously institutions had to use a preponderance-of-evidence standard, which is a lower standard and therefore easier to meet.
- Colleges do not have to designate most employees as “mandatory reporters.”
- Colleges can no longer use the common single-investigator model, in which an investigator writes a report and recommends a finding, but no hearing takes place.
- The definition of harassment also explicitly covers domestic violence, dating violence, and stalking.
- Colleges must investigate off-campus sexual misconduct that occurs in educational activities. Such activities include college-owned buildings and college-sponsored trips, but not in off-campus apartments or during study abroad.
Survivor Advocacy Groups Prepare to Challenge the Changes
Policy change inherently highlights the divide between groups on each side of an issue. These new requirements are no exception. While those supportive of the changes argue they create a more transparent and fair process for all students, student survivor advocacy groups fear it will only serve to deter sexual assault victims from reporting offenses. At least one advocacy group is planning to challenge the legality of the new Title IX rule. But as of now the new rules go into effect on August 14, 2020.
One thing almost everyone agrees on is that the new Title IX rules make it much more likely parties involved in a related investigation will need legal advice to navigate the process. Sports and entertainment law firm Rogge Dunn Group has lawyers experienced with Title IX investigations and the changes the new rules bring. If you have questions or would like more information, contact us here.