Understanding the Department of Education’s Title IX Final Rule

On May 6, 2020, the Department of Education took the significant and immensely impactful action of instituting much more specific Title IX rules and regulations regarding protections for victims of sexual harassment and sexual violence at academic institutions as well as those accused of this violative conduct. For years, there was an incredible amount of gray area and variance in how and to what extent schools and colleges applied Title IX with advocates, administrators and college disciplinary lawyers voicing their own positions on due process, equal application and, for example, the necessity of actual hearings allowing for some degree of cross-examination. While schools do still have a certain amount of discretion under the Final Rule, the terms of these new measure greatly clarify certain aspects of the law and impose much more specific and strict requirements on colleges, universities and high schools regarding their enforcement procedures and policies.

One of the most notable and impactful provisions of these new laws is the specific definition of “sexual harassment.” Now codified, this term includes sexual assault, dating violence, domestic violence and stalking, setting forth a specific framework as to the investigation and hearing process for handling Title IX complaints. In this regard, K through 12 schools and universities must offer options for making a complaint, provide victims certain support options and protective measures such as class or dorm reassignments and restraining orders, and require that accusers and accused individuals, also called complainants and respondents, receive formal, written notice of the allegations.

Additionally, the Final Rule establishes that both parties have the right to an advisor to represent them through the process – potentially including one who is an attorney capable of cross-examining the other side – as well as the related right to have this advisor to actually cross-examine witnesses and challenge the evidence presented at a student Title IX hearing. This new hearing and cross-examination provision drastically change the landscape from preparation, the ability to confront the other party, and provide weight and substance to one’s arguments.

Under these new provisions, schools must also offer free supportive services to any alleged victim of sexual harassment or violence. Supportive measures must be individualized and aimed at restoring and preserving equal access to educational opportunity, protecting safety of the school community, and deterring future sexual misconduct. Importantly, these support measures must be offered and made available even if the victim chooses not to go through the grievance process or refuses to cooperate with the investigation.

Of importance, schools are mandated to clearly establish and abide by an explicit standard of proof (either preponderance of the evidence or clear and convincing evidence), provide “rape shield” protections for survivors of sexual abuse so that they need not answer questions regarding their sexual history or share privileged medical records, maintain appeal options for both complainants and respondents, and incorporate First Amendment protections into Title IX enforcement.

Some other highlights of the new rules relating to to sex-based discrimination generally are that the Department of Education may require colleges, universities and other institutions to take remedial action for violating Title IX regulations, making it clear that schools are never required to nor should deprive an individual of their Constitutional rights. Additionally, the guidelines provide parents or guardians the right and ability to act on behalf of the parties to a complaint.

For many years, some argued the enforcement between school was so vastly disparate as to seem essentially arbitrary. This could be perceived true even within the same college or institution from one year to the next, or from one complaint to another. To advocates of change, it seemed schools often made choices between protecting victims of sexual harassment and ignoring the due process rights of an accused or protecting those fundamental rights while essentially giving mere lip service to those making the allegations. Whether one was or is in support of the Final Rule in its greater protections for a respondent or finds it limiting the voice of a complainant, academic institutions must be able to effectively protect all their students, staff and faculty. This is now ensured more uniformly through the mandated investigation, hearing, determination, and appeal process. The Final Rule provisions are aimed at, among other things, creating a similar path to achieve findings in a consistent way between all institutions and across the nation.

There is no substitute for knowledge and experience regarding these new and crucially important changes and additions to the application and enforcement of Title IX. Now, more than ever, expertise and experience in these kinds of more formal adjudicative processes is essential. Whether as a victim demanding you are protected and your abuser faces genuine consequences or as a respondent having the courage to demand your “day in court” and avoid suspension or expulsion, The Title IX, criminal law attorneys, and former Manhattan prosecutors at Saland Law are here to help guide you through this new landscape and best ensure that you come out the other side with your integrity, academic future, and life intact.

Call our student attorneys, disciplinary hearing lawyers and former Manhattan prosecutors at (212) 312-7129 or contact us online today.