On May 6, 2020, the Department of Education released its updated regulations implementing Title IX (the “Final Rule). Title IX of the Education Amendments of 1972 is a federal law prohibiting discrimination on the basis of sex in education. Due process advocates and federal courts have widely criticized the lack of procedural fairness provided to accused students in higher education sexual misconduct proceedings. The Final Rule is intended to provide procedural fairness to campus sexual misconduct adjudications while protecting the complainant.
The following is a summary of some of the provisions of the Final Rule pertaining to the Title IX process in colleges and universities.
- “Single investigator” no longer permitted: Under the “single investigator” model, complaints of sexual misconduct are handled by one individual (employed by the school for this purpose) who both investigates and determines the outcome of a sexual misconduct accusation. Under the Final Rule, the investigator cannot also determine the outcome.
- Respondents entitled to live hearings: The respondent is entitled to ask questions, bring witnesses and have a live hearing when determining responsibility for sexual misconduct in college and university proceedings.
- Cross-examination: Both parties have the right to cross-examine each other. However, such cross-examination may only be conducted through the use of an advisor or attorney; the complainant cannot be cross-examined directly by the respondent. If requested, the parties can be in separate rooms during cross-examination. If a party does not have an advisor and cross-examination is necessary, the school must provide one.
- Support services for complainants: Universities and colleges may not require a complainant to file a formal complaint of sexual misconduct in order to access counseling and other support services related to the claim. A school may also not deny such support services if the complainant declines to pursue a formal proceeding.
- Standard of proof: Universities and colleges may choose between “preponderance of the evidence” and the higher standard of “clear and convincing” evidence when adjudicating sexual misconduct. However, a school must use the same standard for adjudicating sexual misconduct complaints as it uses to determine other forms of misconduct.
- “Presumption of innocence”: Universities and colleges must apply the presumption that the respondent is not responsible during the grievance process, so that the school bears the burden of proof and the standard of evidence is applied correctly.
- Appeals: Complainants and respondents are both permitted to appeal a college or university’s determination regarding sexual misconduct.
ABOUT LISA BECKER
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Lisa Seltzer Becker began practicing law in 1996. Her practice has always focused on Family Law and Education Law.
As an experienced Family Law attorney, Lisa has helped numerous clients in Maryland and the District of Columbia with their divorce and custody matters. As an experienced litigator, Lisa is also a trained Collaborative practitioner and a skilled negotiator. She uses these skills whenever possible to reach an agreement outside the courtroom, so as to obtain the best outcome for her clients in the most cost-efficient manner. Lisa is a trained mediator and offers this service for divorce and custody cases.
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Author: Lisa Becker, Esq.
Articles have been Reprinted with permission from the charlotte observer and Mike Hunter.
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