On November 16, 2018, Secretary of Education Betsy DeVos released proposed regulations implementing Title IX. The proposed regulations require all colleges and universities receiving any federal funds to follow certain procedures when adjudicating sexual misconduct complaints. Due process advocates and federal courts have widely criticized the lack of procedural fairness provided to accused students in college and university sexual misconduct proceedings. The proposed rules are intended, in part, to provide procedural fairness to campus sexual misconduct adjudications.
The proposed rules, which will be open for public comment for 60 days upon their publication, include the following changes:
- Cross-examination: Currently, many colleges and universities do not permit cross-examination in sexual misconduct proceedings. Under the proposed rules, when the credibility of testimony is at issue, parties will have the right to cross-examine each other. In an effort to protect the complainant from trauma, however, such cross-examination will only take place through the use of an advisor or attorney who will submit a list of questions to the hearing panel. If a party does not have an advisor and cross-examination is necessary, the school must provide one. If requested, the parties can be in separate rooms during cross-examination.
- “Single investigator” no longer permitted: Many colleges and universities have turned to the “single investigator” model for handling complaints. Under this process, one individual (employed by the school for this purpose) both investigates and determines the outcome of a sexual misconduct accusation. There is no opportunity for cross-examination and no hearing to determine whether the accused student committed a violation. The single investigator’s decision can be susceptible to any bias the investigator has. Under the proposed rules, this model will no longer be permitted. Furthermore, all accused students are entitled to live hearings.
- Standard of proof: Currently, most colleges and universities apply the lower “preponderance of evidence” burden of proof for sexual misconduct adjudications. Under the proposed rules, schools will be allowed to 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.
- Off-campus incidents: Colleges and universities would be required to respond to only to complaints of sexual misconduct occurring on campus or at school events. However, schools would not be prohibited from responding to complaints of off-campus sexual misconduct. The purpose of this change is to limit liability for colleges and universities. Since a large number of sexual assault claims involve incidents off-campus, a school opting to adjudicate only on-campus sexual misconduct claims will presumably be handling far fewer complaints.
- Support services for victims: Schools 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.
- Presumption of innocence for accused: Students will be presumed innocent until a determination of guilt (or “responsibility”) is made.
- Gender bias: Training materials used by all school personnel involved in the Title IX process must be free of gender stereotypes.
- Appeals: Complainants, as well as the accused, will be permitted to appeal a school’s adverse determination of sexual misconduct.
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 Title IX of the Education Amendments of 1972 is a federal law prohibiting discrimination on the basis of sex in education.
 On April 4, 2011, the Department of Education issued a “Dear Colleague Letter,” which provided guidance about how schools must handle student complaints of sexual misconduct. The guidance required all colleges and universities receiving federal funds to apply the lower “preponderance of evidence” standard. The guidance also strongly discouraged the use of cross-examination in these proceedings. Although this guidance was rescinded in September 2017, most colleges and universities did not relax their procedures for adjudicating Title IX complaints.
 Students at public colleges and universities are entitled to due process in adjudication proceedings. However, private colleges and universities do not necessarily owe students “due process,” but instead must provide “fundamental fairness” or “procedural fairness.” Since “procedural fairness” is included within due process, I use the term “procedural fairness” throughout this article.
 In September 2017, DeVos promulgated interim guidance which will be in place until final rules are adopted.
ABOUT LISA BECKER
Lisa Seltzer Becker began practicing law in 1996. Since then, she has helped many clients in Maryland and the District of Columbia with their family law issues, including high-conflict divorces, custody cases involving special needs children, domestic violence, and premarital and postmarital agreements. Lisa is an experienced litigator, but is also a trained Collaborative practitioner and trained mediator.
For the last twelve years Lisa has also represented numerous students and families in education matters, including school discipline and bullying in public and private schools, and campus sexual assault/Title IX cases and academic misconduct cases in colleges.
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