How the 2020 Rules May Impact Title IX Defense

September 14, 2020

By Keffer Hirschauer LLP

In 2011, the US Department of Education Office for Civil Rights issued a Dear Colleague Letter (DCL) intended to provide new protections for survivors of sexual assault at schools and universities. Many argued that the resulting protections for alleged victims negatively impacted the rights of the accused. In 2020, the Department of Education took steps to remedy the imbalance, first by officially withdrawing the 2011 DCL and, ultimately, by announcing in May new Title IX rules. In light of an August effective date, schools and universities across the country hastily worked to adjust their Title IX policies and staffing to satisfy the new regulations, but only time will tell how the changes will impact Title IX defense.

Potential Title IX Defense Changes

Title IX now imposes several requirements on universities in staffing, procedures, and protections that were not previously required. While the Title IX changes in 2020 are facially neutral, the effect appears to compel more protections for the accused. Both the accused and victims had argued that the Title IX rules intended to guarantee equal access to both genders were just not working. Different institutions approached the claims differently, some seemingly favoring the victim while others seemed to favor the accused, creating wide disparity in Title IX procedures and the results of claims.

That changed in 2020, when the Department of Education published in May new rules to become effective August 14. For many, the new rules would require schools to expand their Title IX personnel staffing, a costly endeavor for small schools with small staffs. The new rules also require a more stringent grievance process, including a trial-like evidentiary hearing and a uniform burden of proof for employees and students. The extent to which the new rules will balance the scales in Title IX grievance procedures remains to be seen, but, on the surface, they bring some much needed protections to Title IX defense.

A Narrower Definition of Sexual Harassment

As a threshold matter, Title IX now defines sexual harassment, one possible claim under the civil rights law, much more narrowly than before. Previously, any “unwelcome conduct of a sexual nature” could form the basis of a Title IX sexual harassment claim. The new rules raise the bar, limiting actionable claims to cases involving sexual conduct that is “severe, pervasive, and objectively offensive.” As a result, a single incident would no longer qualify as sexual harassment under Title IX.

The new rules add another limiting feature, requiring schools to investigate claims of sexual harassment only if the incidents occurred in the United States on school-owned property or during school-sponsored off-campus activities. In other words, schools are not required to investigate sexual harassment claims based on conduct that occurs in programs out of the country or in Greek housing not officially recognized by the school.

Changes to Title IX Grievance Procedures

The 2020 amendments to Title IX grievance procedures raise the bar for schools and universities in some areas while removing requirements in others. For example, colleges may now designate the individuals with mandatory reporting requirements, no longer requiring coaches and other employees to report sexual misconduct allegations.

However, colleges must now staff and train enough designated Title IX personnel so that the personnel dealing with any particular complaint will be free of conflicts of interest. For smaller universities, this will likely strain budgets and the workload of existing personnel.

Schools must also retain records of Title IX sexual harassment complaints and proceedings for seven years.

Will Trial-Like Hearing Procedures Help Title IX Defense?

The most significant changes that could impact Title IX defense involve the process for investigating and resolving sexual harassment complaints. Title IX now requires a more trial-like process. Educational institutions must provide the accused the following:

  • The allegations in the complaint
  • A statement regarding the presumption of innocence
  • The evidence gathered, in advance of the hearing
  • The right to legal representation
  • A formal grievance process that includes a live hearing with cross-examination

Further, the new Title IX rules also address the burden of proof. Schools and universities may raise the evidentiary standard from a preponderance of the evidence to the clear and convincing standard but only if the same standard applies to both students and employees.

The new requirement for quasi-judicial proceedings also raises red flags. The cross-examination requirement applies only to relevant questions, but whether a question is relevant is a complex legal inquiry. It is unlikely that Title IX personnel, who are most likely non-lawyers, are equipped to understand and implement this standard.

Questions Linger for Title IX Defendants

As Indiana schools and universities travel this new Title IX road, many are watching to see whether the 2020 Title IX rules will impact both complainants and Title IX defense equally. Title IX allegations are serious and can have lasting effects on educational and employment opportunities. Even with new protections in place, anyone accused of a Title IX violation is best served by immediate consultation with an experienced Title IX lawyer.

Keffer Hirschauer LLP was built on a foundation of protecting individual rights. Nowhere is that more important than in the quasi-judicial proceedings involving a Title IX complaint. Don’t think that Title IX defense is something you can or should handle alone. If you’ve been accused of sexual harassment or another Title IX violation, schedule a consultation with an experienced Title IX defense lawyer in Indiana at Keffer Hirschauer at (317) 857-0160 or complete our online contact form. Time is not on your side—call today!