Today the Department of Education announced its new Title IX regulations (the regulations begin on page 2008), taking a much-needed step toward promoting fundamental fairness, reliability, and consistency in campus disciplinary proceedings. The regulations are firmly rooted in the principle that Title IX protects access to education for all parties – complainants and respondents, males and females – and that disciplinary proceedings should be fair to all.
The new regulations give schools and parties more flexibility to pursue informal, non-punitive resolutions. For formal complaints, the regulatory requirements are aligned with basic principles of justice, with court precedent requiring fair procedures for people accused of serious misconduct, and with Title IX’s broad proscription of gender discrimination.
Key procedural protections include the right to adequate notice of charges and applicable procedures; to a gatekeeper assessment, so that complaints proceed only if they pass a defined threshold; to impartial investigators and decisionmakers, trained to ensure due process and avoid sex stereotypes; to thorough and fair investigations, where schools gather and consider both exculpatory and inculpatory evidence and share all the evidence with the parties; to a live hearing, including the opportunity, through advisors, to cross examine the other party and witnesses; and to a presumption that the respondent is not responsible unless the applicable standard of proof is met.
Patricia Hamill, Chair of Conrad O’Brien’s Title IX, Due Process and Campus Discipline practice where she represents students and faculty in campus disciplinary proceedings and related litigation, is heartened by the Department’s reminder that Title IX rights must be interpreted consistent with due process guarantees. “The Department specifically notes that this has been the standard for nearly 20 years,” Patricia said. “The regulations provide for an effective date of August 14, 2020, but in most respects, they simply codify legal principles that have been ignored by colleges and universities for far too long.”
“Passing regulations, while vital, is not enough,” added Patricia’s partner and practice group Vice Chair, Lorie Dakessian. “For proceedings to be truly fair, colleges and universities must be committed to fairness, and must apply both the letter and the spirit of the new regulations.”
Patricia Hamill and Lorie Dakessian are partners at the Philadelphia law firm Conrad O’Brien, P.C., and lead the firm’s nationwide Title IX, Due Process and Campus Discipline practice. They have represented close to 200 college students and academic professionals in disciplinary proceedings and related litigation involving more than 70 colleges and universities. They are frequent speakers on Title IX issues to audiences including Title IX coordinators, attorneys, and advocacy groups. Patricia and Lorie’s task as attorneys is to advocate for fair, objective, and reliable Title IX proceedings, and they see that as a nonpartisan issue.