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Long-Awaited Title IX Regulations Are Finalized; Effective August 14

By Robert Gorman

May 13, 2020

The United States Department of Education has released long-awaited new regulations governing campus sexual assault under Title IX, the law prohibiting sex discrimination at federally funded institutions.

The new regulations are the culmination of a two-year process.  Proposed regulations were published in 2018 and received more than 124,000 public comments.  The Department of Education took those comments into consideration and modified the proposed regulations in putting forth its Final Rule.  The Final Rule will be effective on August 14.

The Final Rule substantially changes the process through which claims of sexual harassment are administered and determined on the college level.  Most parts of the Final Rule also apply to claims in elementary and high school as well.

Under longstanding guidelines, colleges are required to investigate complaints of sexual harassment and may discipline students and employees under a “preponderance of the evidence” standard.  Colleges were permitted to make determinations of culpability without conducting live hearings or permitting cross-examination of complainants.  Critics argued that students were being expelled from school or otherwise disciplined without appropriate process and protections.

The Final Rule will require colleges and universities to conduct a live hearing before proceeding to discipline students or employees in cases in which a student alleges that harassment interfered with educational opportunities.  The live hearing must permit the cross-examination of all witnesses.  Questioning will be done by advisors for parties, not by the parties themselves.  Advisors may, but are not required to be, attorneys.  In part to reduce the stress of cross-examination, a party can request that the parties be separated into different rooms during the hearing, with questioning accomplished via videoconference. 

The Final Rule permits colleges to decide whether to adopt a “preponderance of evidence” standard or a higher “clear and convincing evidence” standard as the burden of proof.  The chosen standard must be used for all complaints, no matter if they allege student or faculty misconduct. 

Critics argue that the Final Rule will discourage reporting of campus sexual assault and will make it harder to punish offenders.  Defenders of the Final Rule argue that the newly mandated processes will permit a full examination of all charges while still giving colleges the power to remove offenders from school or impose other appropriate discipline.

Under prior law, colleges were permitted to process Title IX claims through a single investigator who investigated, adjudicated, and issued disciplinary sanctions against accused students and college employees.  The new regulations will instead require three separate officials to handle the complaint process.  A Title IX coordinator will be responsible for the overall compliance with the federal regulations.  An investigator will be responsible for gathering facts, interviewing parties and witnesses, and sharing investigatory reports with the parties.  Finally, one or more decision-makers will conduct a hearing and determine responsibility, sanctions, and remedies.

Colleges are required to train all personnel involved in the Title IX process and publish their training materials on their website. 

A live hearing with cross-examination is optional for K-12 schools.  Even on the K-12 level, however, an investigator must provide an equal opportunity for the parties to provide evidence and review the other parties’ evidence.  Each party is entitled to receive a copy of the investigator’s final report and comment on it prior to a decision being rendered.

At all levels of education, an alleged offender may be removed from school on an emergency basis if the offender is deemed an immediate threat to the physical health or safety of another individual.  If this is done, however, the alleged offender must be provided with an opportunity to challenge the decision immediately following the removal.  Absent an emergency situation, the emphasis in the Final Rule is on a deliberative process with equal opportunity for the complainant and the respondent to present evidence, cross-examine witnesses, and have counsel or another advisor of their choice present.

The Final Rule will require educational institutions to amend their current policies in the upcoming weeks, in anticipation of the August 14 effective date.  Attorneys in the Higher Education Practice Group at Critchfield, Critchfield & Johnston, Ltd. are available to advise and assist in these processes. 

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