Thursday, May 7, 2020

What You Need to Know About the New Title IX Regulations

By Samantha Harris - May 07, 2020 at 09:58AM

The Department of Education has finally released its new Title IX regulations, which both restore critical due process protections to campus sexual misconduct proceedings and make it harder for universities to sweep allegations of such misconduct under the rug. 

If you've looked at the new regulations, you probably noticed that the document issued yesterday is more than 2,000 pages long. What are the essential things you need to know?

First, the mere fact that the final document is 2,033 pages long demonstrates just how seriously the Department of Education took the feedback it received from the more than 100,000 commenters who participated in the notice-and-comment process. The regulations themselves start on page 2,008, and the remainder of the document is devoted to addressing, in great detail, the comments received and the rationale for the ultimate decisions. This stands in stark contrast to the previous administration's April 4, 2011 "Dear Colleague" letter, which—in 19 pages and with no public input whatsoever—led to the widespread dismantling of due process in campus sexual misconduct proceedings. 

The new regulations address two broad categories of institutional obligations. The first is jurisdictional: When does a university have a responsibility, under Title IX, to take action? The second is substantive: When a university does take action, what must it do? 

In terms of when a university must take action, the new regulations use a speech-protective definition of sexual harassment that mirrors the definition established by the Supreme Court in Davis v. Monroe County Board of Education (1999). Under the new rules, hostile environment sexual harassment is defined as "unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school's education program or activity." This is a critically important provision because the previous administration had employed an overly broad definition—"any unwelcome conduct of a sexual nature"—that led students and faculty to be punished for speech and expression protected by the First Amendment. The regulations also make clear that Title IX prohibits physical sexual misconduct such as sexual assault, dating violence, domestic violence, and stalking.

The new regulations also make clear that universities must respond to any sexual harassment that takes place "in the school's education program or activity." This includes not only incidents that occur on school grounds, but also incidents that occur in contexts where the university has "substantial control," including in buildings owned or controlled by recognized student organizations (such as fraternity houses.) 

The regulations also contain a lot of information about how schools must conduct their Title IX grievance procedures. While Title IX has long required a "prompt and equitable" process, colleges' handling of these cases in recent years has been anything but equitable. Ever since the 2011 Title IX Dear Colleague letter—which eliminated important procedural protections for the accused and ushered in an era of aggressive federal investigations that led schools to abandon even more due process protections—students have been forced to defend themselves in biased, inquisitorial proceedings, often with little to no information about what they allegedly did wrong. 

Those days are now over. From the start of a proceeding, universities must now provide students with detailed notice about the allegations against them. Noting that "a party cannot be fairly expected to respond to allegations without the allegations being described prior to the expected response," the regulations require universities to disclose, prior to any interview, "the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment under [the regulations], and the date and location of the alleged incident, if known." The regulations also provide that the notice "must include a statement that the respondent is presumed not responsible for the alleged conduct." The presumption of innocence is, of course, one of the core principles of our justice system, but it is strikingly absent from campus policies: according to a recent survey by the Foundation for Individual Rights in Education (FIRE), where I am a senior fellow, more than two-thirds of the nation's top universities do not explicitly guarantee accused students the presumption of innocence. 

The regulations also require universities to allow both parties "to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint," even if the university does not plan to rely on that evidence in making its determination. In the years since the Dear Colleague letter, more than 600 students accused of sexual misconduct have sued their universities alleging denials of due process, and suppression of exculpatory evidence is a common theme in these cases. This will make it much harder for universities to suppress either inculpatory or exculpatory evidence. 

Transparency is a theme throughout the new regulations, which is of critical importance to ensuring a fair and unbiased process given universities' penchant for secrecy. The regulations require not only that universities train Title IX investigators and adjudicators using materials that do not "rely on sex stereotypes" and that "promote impartial investigations and adjudications," but also that a university "must make these training materials publicly available on its website." Due process advocates have long known that universities rely on biased training materials, but the materials themselves have been extraordinarily hard to come by—universities have only produced them when legally forced to by litigation discovery or FOIA requests. Given that even the fairest process on paper is meaningless if the adjudicators are biased, the requirement of unbiased, publicly available training materials is one of the most important provisions of these new regulations.

The other game-changing provision is the requirement that universities adjudicate formal complaints of sexual misconduct using live hearings at which the parties, through their advisors, are permitted to conduct cross-examination. This means that universities can no longer use the "single investigator" model in which one person effectively serves as detective, prosecutor, judge, and jury—a model that has led to terrible abuses of power and that, even under the best of circumstances, rests a tremendous amount of authority in one person with, as one federal judge put it, "little effective power of review." It also means that, in cases that so often turn entirely on credibility, the parties will have the benefit of cross-examination, which the Supreme Court has called "the greatest legal engine ever invented for the discovery of truth." The regulations also make clear that cross-examination can only be done through an advisor, rather than by the parties themselves, out of concern for the possibility that "parties will feel traumatized by the prospect and reality of personal confrontation." 

It is difficult to understate the importance of these regulations for due process on campus. After a careful and lengthy rulemaking process, the Department of Education has taken meaningful steps to ensure that the laws it enforces are not used to violate students' most fundamental rights.


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