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March 25, 2020

The COVID-19 Crisis Must Not Be Used to Further Limit the Rights of Accused Students or to Slow Enactment of the Proposed Title IX Regulations

I am struck by the two contrasting messages here. The Chronicle of Higher Education reports that many universities, despite the challenges presented by COVID-19 and students being sent home, are plowing ahead with their Title IX proceedings and are touting their ability to do so using technologies such as videoconferencing (https://www.chronicle.com/article/Sexual-Assault-Investigations/248305). At the same time, universities and others are citing the pandemic in a joint letter to the Department of Education, seeking to stop the Title IX rulemaking process (which has been painstakingly ongoing since November 2018, was signaled by DOE guidance issued in September 2017, and is consistent with multiple court decisions over the past few years) (https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2020/03/NWLC-Letter-to-ED-and-OMB-re-COVID-19-and-Title-IX-3.25.20.pdf). 

 

The DOE’s efforts to restore due process to Title IX proceedings should not be deferred. Accused students already have limited rights to defend themselves when universities deny them full access to evidence and the right to question their accusers before an impartial decisionmaker, things that would be remedied by the proposed Title IX regulations. Forcing students to defend themselves via videoconferencing, where they may be further limited in their access to evidence and opportunity to defend, as well as not being able to be in the same place as their advisors, only compounds the problems. If universities are continuing to conduct disciplinary proceedings, they can and should be required to do so in a way that satisfies the requirements of Title IX, due process, and basic fairness. The new rules must be enacted now.  Given how long universities have been on notice, if they are not ready to provide these basic procedural protections, they have only themselves to blame.

 

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