Kaiser’s Guide to the New Title IX Regulations

The Education Department’s new Title IX regulations are a watershed moment for Title IX cases on college campuses.  Here is our practical guide to some of the highlights, in the order they appear in the regulations.

1 – EMERGENCY REMOVAL (Section 106.44(c))

Under the current regime, schools would often throw students off campus as soon as a complaint was filed.  Our firm once handled a case where an international student was summarily suspended before his investigation had even started, thus causing him to lose his visa and be forced to return to his home country.  When we pointed out that this was a pretty clear due process violation, the school caved and let him back in (and ultimately cleared him of all charges).  But it shouldn’t have taken a law firm to do that.

Now the rule has changed.  Under the new regulations, schools will have to do an “individualized safety and risk analysis” and can kick someone off campus only once they have determined that the student poses an “immediate threat to physical health or safety.”  Given that many Title IX complaints are filed weeks, months, or even years after the conduct in question, this will make it a lot harder for schools to play games with interim measures.

Finally, a respondent will have a “notice and opportunity to challenge the decision immediately following the removal.”  To be sure, it would be better if that opportunity were given immediately before the removal, but let’s not look a due process gift horse in the mouth.

2 – BURDEN OF PROOF (Section 106.45(b)(5)(i))

This one’s going to be interesting.  The new regulation requires schools to use the same burden of proof for students as for employees.  At schools with collective bargaining agreements with staff and faculty, this could be tricky for schools to navigate.

Unions, for example, like to protect their members.  One way they do that is by requiring a higher burden of proof than a preponderance of the evidence—namely, clear and convincing evidence—before any adverse action can be taken against a member.  Under the new regime, schools will no longer be able to have one standard for employees and another one for students.  Everybody either gets the higher standard or the lower standard.  Full stop.

Here’s where this will get interesting:  Many college professors have said a lot of things about how the Betsy DeVos era is terrible for Title IX cases (and many other things).  One wonders if those same professors will put their careers where their mouths are by agreeing to a lower burden of proof just so that the schools can use the lower burden of proof for student cases.

3 – NOTICE REQUIREMENT  (Section 106.45(b)(2))

This is also a small but significant change.  Under the Obama-era guidance, there was no notice requirement.  Schools could literally send you a charging document that said you had been accused of sexual misconduct on a particular date, and that was it.  No details, no description of what you supposedly did.

Not so anymore.

Now, schools will have to give a respondent “sufficient details known at the time and with sufficient time to prepare a response before any interview.”  That notice must include the “conduct allegedly constituting the sexual harassment.”

Moreover, they now have to tell you that you have the right to an attorney.  The previous rule did not require that, and it will surprise no one who follows these issues that, while many schools told you you have the right to an “advisor of your choice,” they didn’t bother to say that that advisor could be a lawyer—a fact that often does not occur to scared college students.

Finally, the notice of requirement is ongoing—if a school learns more information, it has to share it with the parties.  This will stop the games of “gotcha” that schools are too often happy to play.

4 – MANDATORY DISMISSAL (Section 106.45(b)(3)(i))

This is a fascinating one.

The new regulations include something that has appeared in no previous guidance I’m aware of—conditions under which a school must dismiss a complaint.

The three most interesting are as follows.

First, if the complaint does not rise to the level of sexual harassment as defined in the regulations, it must be dismissed.  So, for example, an off‑hand comment of a sexual nature or a wolf whistle—something that people in previous generations would have blown off but current administrators are happy to pounce on—is no longer going to be prosecutable.

Second, the conduct must occur in the context of an “education program or activity.”  This makes sense.  The whole point of Title IX is to provide equal access to education, not to be a generalized code of student conduct.  So if the conduct does not occur in an educational program or activity, the schools have no business punishing it.

Third, if the conduct did not occur in the United States, a school can’t touch it.  So if, for example, two college students are backpacking around Europe, have drunken sex in Amsterdam, and then one of them says it was assault, a school can no longer put that through its Title IX process.  It will be interesting to see whether they will try to do so anyway if, for example, the students were on a break from a study-abroad program.  But this is certainly a good start.

5 – A RETURN TO COMPLAINANT AUTONOMY (Section 106.45(b)(3)(ii))

The new regulations will also return autonomy to the complainant.

Under the current system, once a complaint has been filed, the train has left the station, and a complainant can’t withdraw a complaint even if she wants to.  (No, really.)  The new regulation would empower the complainant to dismiss her case and ask for informal resolution at any stage.

In short, the complainant gets back in the driver’s seat, which is where she belongs.  A school should not proceed with a complaint if the complainant doesn’t want to proceed with it.  And if the complaint is serious enough that a school can genuinely say that the respondent poses a potential danger to the community, then a criminal investigation can pick up where the school leaves off.  That is as it should be.

6 – EVIDENCE GATHERING (Section 106.45(b)(5)(iii))

This is a big one.

The new regulations say that schools may “not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence.”  Surely this is already the rule, you say.  Surely schools wouldn’t dare to tell respondents, for example, that they can’t reach out to witnesses who might be able to help them.

Alas, not so much.  Many private schools actually prohibit the parties from interviewing witnesses or contacting them at all.

Of course, these rules are never enforced against complainants, who are free to talk to all of their friends about what happened, getting all of their stories straight, before deciding to file a complaint days, weeks, months, or even years later.  But when the respondent gets the notice and wants to reach out to witnesses who can say that it never happened, or that the complainant did not actually look that drunk, he is prohibited from doing so.

You would think a rule like this could only happen in North Korea, but you would be wrong.  Happily, the new regulation changes that.

7 – YOU GET A COPY OF THE EVIDENCE (Section 106.45(b)(5)(vi))

Under the current regime, schools are not required to actually give the parties a copy of the evidence against them.  Notre Dame, for example, literally makes you go into a room with no phone and no computer and take handwritten notes on a piece of paper.

This is as ridiculous as it sounds.  Especially in cases where the reports get very long – we have had several cases where the investigation report exceeded 500 pages – there is no way to effectively defend yourself if you can’t have a copy of the evidence.  Many schools don’t care about that.

But the Education Department does.  So now, schools are required to send a copy of the evidence at two different stages of the case – once, at least ten days before any investigation report is completed, and then again at least ten days before the hearing.  Moreover, the parties are allowed to submit a written response to the draft investigation report, and the regulation states that the investigator “will consider” that response before completing the investigation report.

In other words, you get a copy of the evidence, you get to respond to it in writing, and the investigator has to consider it.  Radical stuff, this is not.  But it took a federal regulation to make it happen.

8 – LIVE HEARING (Section 106.45(b)(6)(i))

This is, perhaps, the most important.  No longer will schools be able to use what we have previously referred to as the Javert model, for the Les Miserables fans among you.  No longer can a single investigator—sometimes a former sex crimes prosecutor or victim’s advocate—serve as judge, jury, and executioner.  Now there’s a live hearing.

And it gets better.  During that live hearing, both parties and witnesses are subject to cross-examination by a party’s advisor.  If a party cannot afford an advisor, the school has to provide one free of charge.  That doesn’t have to be a lawyer, but it has to be someone.  Obviously, anyone who can afford a lawyer should hire one to do this, because cross-examination is far more productive when conducted by someone who’s done it before.

There’s a funny wrinkle in the policy that I wish had been left out, though – the decision maker gets to determine whether a question is appropriate before any answer is given.  That doesn’t make a lot of sense, and, in practice, I suspect there will be a blanket policy that allows for objections but not the individual screening of each question, which would take forever.  Still, quibbling with that too much, assuming it is implemented in something approaching a fair manner, is truly looking a gift horse in the mouth.

Parties and witnesses do not have to subject themselves to cross-examination.  So if they believe it would be too traumatic, they can refuse to participate.  But if they do refuse, the regulation says, with a tremendous amount of common sense, that the decision maker cannot rely on “any statement” given by the party or witness.  This would necessarily include any original written complaint, any interviews given during the investigation process, and anything at all submitted by the party.

It will be interesting to see how this plays out if a complainant decides at the last minute, for example, not to show up for the hearing.  There are certain bells that you can’t unring.  So if a panel has already read all of the complainant’s statements before she tells them that she will not submit to cross-examination, what happens?  It would seem in that case, a new panel should be put together and that the complainant should be stuck with her decision.  It will be interesting to see how schools deal with that practical problem.

There are other protections for complainants who are willing to submit to questioning but don’t want to do so in the same room.  The regulations state that complainants and respondents do not have to be in the same room, so a complainant could be cross-examined over video, presumably.

And finally, the regulations require the school to record or transcribe the hearing and make it available to both of the parties.  Sunlight being the best disinfectant (more on that later), this is a very good change.  (I don’t think there were any stenographers in the Star Chamber.)

9 – THE DECISION (Section 106.45(b)(7))

At the end of the hearing, the panel must make findings of fact and give a rationale for its reasoning.  You would think they would do this every time, but you would be wrong.  If you look up “tautology” in the dictionary, I think there is probably a picture of the average Title IX findings letter.  It will surprise no one who has ever had to justify a decision that when you have to explain your reasoning, it gets a little harder to hide sloppy reasoning.  Making people explain why they are reaching the conclusion they’re reaching is a terrific innovation.

10 – APPEAL (Section 106.45(b)(8))

Both parties have a right to appeal, as they have had for years.  Unfortunately, the Department only required three grounds for appeal, although schools can add more:  (1) procedural irregularity, (2) new evidence not reasonably available at the time of the hearing, and (3) conflict of interest or bias on behalf of the decision maker.

It would have been nice if they added insufficient evidence, because that would have allowed what the best appeal processes do—a safety valve during which a senior administrator can review a panel’s finding, when that panel may have been unduly swayed by emotion and focused insufficiently on the evidence.  This is a disappointment in the new regulations, but schools are free to supplement and add that factor if they would like to do so.

11 – TRAINING MATERIALS (Section 106.45(b)(10)(i)(D))

Finally, schools have to publish their training materials on their web sites or make them reasonably available if they don’t have a website.  (What school doesn’t have a web site these days?)

This is what might be fairly called “the Emily Yoffe rule.”

Ms. Yoffe’s groundbreaking expose in the Atlantic back in 2017 exposed in great detail the fake science and bogus statistics that undergird many of the training materials used in Title IX cases.  There is a reason, it turns out, that schools have refused to make them public and that they have only been made public during litigation.

It will be very interesting to see how schools respond to this.  It will be even more interesting to see whether there is backlash from tuition-paying parents who can finally see the sort of garbage that is fed to Title IX investigators on campus.  No longer will schools be able to teach investigators or panelists to “start by believing,” which is surely one of the more abominable phrases to come out of the modern Title IX era.  Start by listening with respect, start by being sensitive, yes.  But in no other area of American life where two people are disputing whether a thing happened do we “start by believing” one side.  To suggest otherwise is to engage in Orwellian newspeak with a Title IX tinge.

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If the new regulations go into effect, which they are slated to do on August 14, 2020, they will have a massive impact on how Title IX cases are handled on college campuses.

To be sure, lawsuits seeking to enjoin them will inevitably be filed somewhere in California this month, if not this week.   And if the trend of nationwide injunctions during the Trump Administration is any guide, one might not want to be too optimistic that the August date will hold.

But one thing is certain: the Education Department has done an admirably thorough job in getting these rules right and being careful about their promulgation.  They have the potential to change many lives for the better and slow, if not stop, the terrible miscarriages of justice our firm has seen on college campuses week in and week out.