The Department of Education’s New Title IX Regulations: Rooted in Fundamental Due Process Guarantees

On May 7, 2020 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 processes established by the new regulations benefit both parties and balance their interests. As summarized by the Department: “These final regulations require recipients to offer supportive measures to every complainant, irrespective of whether the complainant files a formal complaint. Recipients may not treat a respondent as responsible for sexual harassment without providing due process protections. When a recipient determines a respondent to be responsible for sexual harassment after following a fair grievance process that gives clear procedural rights to both parties, the recipient must provide remedies to the complainant.” Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, Supplementary Information, at 20. In other words:

• Complainants are assured that every report of sexual misconduct will be taken seriously, that they will have the agency to decide for themselves whether to pursue a formal grievance process, and that they will be given prompt access to a broad range of supportive measures whether or not they file a formal complaint and without any showing of proof of their allegations.
• If a complainant chooses to pursue a formal grievance process, both parties are assured of specified procedural protections designed to ensure due process/fundamental fairness for both.
• Respondents are assured that they will not be subjected to discipline unless they are found responsible after a fair process, including notice, an opportunity to respond, and impartial decisionmakers. 
• If a respondent is found responsible, the complainant is assured of an effective remedy and the respondent is subject to disciplinary sanctions.
• The parties may agree to informal resolution options if both agree that something other than a formal process will best meet their particular needs. 

Below, we briefly discuss the historical context of the regulations, starting with the issuance of the 2011 Dear Colleague Letter to the promulgation of the new regulations (“Background”), provide an overview of the structure and key provisions in the new regulations (“The Regulations”), and close with our concerns about whether colleges and universities will truly be committed to fairness as they implement the necessary changes in their policies and procedures to comply with the new regulations (“Colleges and Universities Must Be Committed to Fairness”). 

Background

Starting in 2011, the federal government began to take aggressive steps to combat what it viewed as an epidemic of sexual assault on college campuses, focusing on countering discrimination against women. At the same time, schools have been subject to mounting public pressure to crack down on alleged perpetrators of sexual misconduct. We absolutely welcome the push to ensure that sexual assault claims are taken seriously and investigated properly. In pursuing laudable goals, however, many schools have gone too far, essentially eliminating due process protections for respondents – the great majority of whom are male – in proceedings involving alleged sexual misconduct. Students and academic professionals are suspended, expelled, or pushed out of their positions without meaningful notice or opportunity to be heard, and are left with records that permanently brand them as sexual offenders, devastate them personally, and severely impact their educational and career opportunities. In this age of social media and the internet, the mere mention of a sexual misconduct accusation can have the same negative and ongoing effects as a finding of responsibility, even if the accused is exonerated.

Over the past few years, state and federal courts have increasingly been holding schools accountable for failure to provide fair proceedings to respondents accused of sexual assault. In 2017, the Department of Education reaffirmed basic principles needed for fair and reliable proceedings, and began taking steps to implement those principles. In September 2017, it rescinded previous guidance documents and issued new interim guidance. It then developed proposed regulations, which it published in November 2018.

Since the proposed regulations were first announced, over 100,000 comments have been published, both through the formal regulatory process and in other public forums. More lawsuits have been filed, and dozens of new court decisions have been issued. Many court decisions champion the basic protections included in the new regulations. Other courts defer to school administrators, accept the disingenuous argument that adopting a presumption in favor of alleged victims does not support allegations of gender discrimination, and dismiss claims even when they acknowledge a respondent was railroaded. 

And now, the long-awaited regulations are in place.

The Regulations

The new regulations require schools to treat complainants and respondents equitably, by offering supportive measures to anyone alleged to be victimized by sexual harassment and by imposing discipline only if justified based on a fair, predictable grievance process that provides due process protections to both parties. Complainants are given more choice and control over how to proceed. Schools and parties are given more flexibility to pursue informal, non-punitive resolutions. When a complainant does choose to file a formal complaint, the regulatory requirements are aligned with basic principles of justice for both parties, with court precedent requiring fair procedures for people accused of serious misconduct, and with Title IX’s proscription of all gender discrimination. For those who say pro-victim bias is an acceptable corrective to past injustices, the Department has made clear that that is not so: “The [regulatory] grievance process aims to provide both parties with equal rights and opportunities to participate in the process, and to promote impartiality without favor to complainants or respondents, both because treating a complainant or respondent differently based on sex would violate Title IX, and because a process lacking principles of due process risks bias that in the context of sexual harassment allegations is likely to involve bias based on stereotypes and generalizations on the basis of sex.” Supplementary Information, at 277.

Section 106.45 of the new regulations requires the following key procedural protections for formal grievance processes:

• Schools must investigate allegations and objectively evaluate all relevant evidence, both inculpatory and exculpatory, ensuring that credibility determinations are not based on a person’s status as a complainant, respondent, or witness.
• School officials involved in Title IX proceedings must not have a conflict of interest or bias for or against complainants or respondents generally or for or against an individual complainant or respondent.
• A school must train its officials on the definition of sexual harassment and how to conduct an impartial investigation and grievance process, “including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias.”
• Training materials must promote impartial proceedings and must not rely on sex stereotypes.  
• A respondent must be presumed not responsible until a final decision is made.
• Complaints must be resolved in a timely way.
• Both parties must be given complete and correct information about the process, including the standard that applies, the potential sanctions, appeal rights, and the supportive measures available.
• When a formal complaint is filed, the school must give the parties written and timely notice of its grievance procedures and of the allegations, and the school must also notify the parties if it later decides to investigate additional allegations.
• Formal complaints must be investigated, and must be dismissed if the alleged conduct does not constitute sexual harassment as defined in the regulations or did not occur within the school’s education program or activity.
• Schools bear the responsibility for gathering evidence “sufficient to reach a determination,” and must provide the parties an equal opportunity to present witnesses and evidence, timely notice of meetings or hearings, and equal access to evidence obtained in the investigation. 
• Investigative reports must fairly summarize relevant evidence and the parties must be given the chance to review and respond.
• Postsecondary educational institutions (e.g., colleges and universities) must provide for a live hearing and allow advisors to the parties to crossexamine the other party and witnesses in real time, with the right to ask “all relevant questions and followup questions, including those challenging credibility.”
• Schools must issue a detailed written determination regarding responsibility.
• A decision maker cannot also serve as the Title IX Coordinator or investigator (thereby prohibiting the “single investigator” model in use at many schools).
• Schools may use a preponderance of the evidence or a clear and convincing standard, but must use consistent standards for students, faculty, and staff.
• Schools must offer both parties an appeal, must implement appeal procedures equally for both parties, and must issue a written appeal decision.
• Schools may facilitate an informal resolution process that does not involve a full investigation and adjudication, so long as it provides a comprehensive written notice to the parties and obtains their voluntary consent. 
• Schools must maintain records of disciplinary proceedings and training materials for seven years, and must make training materials publicly available on its website.
• Any additional rules or practices a school adopts must apply equally to both parties.

Almost 20 years ago, the Department emphasized that Title IX rights are rooted in and must be interpreted consistent with due process guarantees, and the new regulations are based on that principle. The regulations provide for an effective date of August 14, 2020, but in most respects, they simply codify legal principles that have been ignored for far too long.

Colleges and Universities Must Be Committed to Fairness

Passing regulations, while vital, is not enough. 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.

We hope this will happen, but are concerned it will not. Among other things:

• The same factors that led to unjust results under the old system – including widespread pressure to resolve grievances against accused students, and officials long steeped in the presumption that a complainant’s account of an incident must be believed – may lead to unjust results even if schools adopt fairer procedures on paper.
• Despite dozens of court setbacks and over two years’ notice of the Department of Education’s intentions, many schools have left unfair processes in place and have continued to actively resist changes. Some of the starkest examples are in the Sixth Circuit, where the Court of Appeals ruled in 2017 that public universities must allow accused students to cross-examine their accusers in a live hearing. A recent study determined that almost 25% of the public universities in the jurisdiction still have not complied. https://www.mindingthecampus.org/2020/03/25/in-campus-sex-cases-cross-examination-is-now-on-the-table/.
• Though schools are continuing to conduct Title IX proceedings during the COVID-19 pandemic – under circumstances that can further impair respondents’ access to evidence and ability to defend themselves – some actively advocated for a delay in the regulations due to the pandemic. This illustrates again how entrenched the current system is.
• Advocates for alleged victims have challenged the Department of Education’s 2017 guidance in court, and have signaled their intention to challenge the final regulations. Ironically, given schools’ contention that pro-victim bias is not gender bias, opponents to the regulations have argued that protections for accused students are motivated by discriminatory animus against women. 
• A change in administration after the coming election may also impact the regulations or how they are enforced.

We applaud and support the Department’s goals. As the Department observed: “In every case in which Title IX sexual harassment is alleged, the facts must be resolved accurately to further the non-discrimination mandate of Title IX, including providing remedies to victims and ensuring that no party is treated differently based on sex.” The new regulations “not only incorporate[] basic principles of due process appropriately translated into the particular context of sexual harassment in education programs and activities but also serve[] to prevent, reduce, and root out sex-based bias that might otherwise cause recipients to favor one party over the other.”

Supplementary Information, at 220, 278.

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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.