Certified Title IX Investigators

Indiana Title IX Attorneys Explain Changes to Title IX Rule

Title IX of the Education Amendments of 1972 put in place certain protections for victims of sexual assault, misconduct, discrimination, and related wrongs in educational programs or activities. The statute has remained relatively the same since its enactment, but that could be about to change. Secretary Betsy DeVos, the head of the US Department of Education, has published rule amendments that would materially alter the nature of Title IX procedures at Indiana universities and schools as well as elsewhere around the country. Make sure you understand what the proposed changes to Title IX mean for the rights of anyone accused of Title IX violations.

Contact Keffer Hirschauer LLP today to learn more about what our Indianapolis attorneys can do for you.

Possible Rule Changes to Title IX in 2020

Title IX was enacted to extend sex-based discrimination protections to the educational setting. At its core, the statute prohibits any sex-based conduct that could result in:

  • Exclusion from participation in any educational program or activity
  • Denial of the benefits of an educational program or activity
  • Discrimination in any educational program or activity

Frequently used as the basis for ensuring equal access of both sexes to athletic and other programs, in more recent years it has been interpreted as prohibiting sexual harassment or violence in the educational setting. Federal regulations shape the interpretation and enforcement of Title IX. The changes to Title IX rules proposed by DeVos would alter that landscape, shifting the definitions, procedures, and focus of Title IX cases.

Current Title IX Procedures at Indiana Universities and Schools

The current procedures for dealing with sex-based harassment and violence claims in education are based on the 1972 statute, case law, and relatively recent non-binding guidance from a prior administration. The Obama administration offered direction to universities and schools in the form of a “Dear Colleague” letter in 2011, explaining how the administration interpreted the act. In particular, the letter qualified the definition of sexual harassment and violence as forms of sex-based discrimination. Schools that failed to investigate such allegations would be at risk of losing their federal funding.

Any Indiana university or school that receives federal funding must comply with Title IX. Currently, each school’s Title IX policy prescribes the process for investigation and resolution of Title IX complaints. These policies and procedures vary across Indiana universities and schools, which have only Title IX and the Obama-era non-binding letter for guidance, but they generally contain:

  • Definitions of conduct deemed to violate Title IX
  • The identity of the school’s Title IX coordinator
  • A description of the school’s Title IX investigation and resolution process
  • The deadlines for each stage of the Title IX investigation and resolution process

The substantial shift evident in the proposed changes to Title IX regulations will necessarily impact Title IX policies and the rights of those accused of Title IX violations across the Hoosier state.

The Proposed Changes to Title IX and What They Mean for Indiana Schools

In 2017, DeVos issued a statement withdrawing the Obama-era “Dear Colleague” letter and outlining a different direction for Title IX procedures, focusing on or at least adding protections for the accused. In 2018, DeVos published proposed new rules for public comment. If passed, the sweeping changes of the new Title IX rules would give the Trump administration’s interpretation of Title IX the force of law.

Currently, Title IX procedures do not provide the same protections to the accused as found in criminal proceedings. At their core, the proposed rules redefine sexual harassment and sexual assault. They define sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.” They also adopt the definition of sexual assault from the Clery Act, bringing Title IX into alignment with the Violence Against Women Act.

In addition to the redefining prohibited conduct, DeVos also proposes regulations requiring the following:

  • Schools should be required to “respond meaningfully” to every known report of sexual harassment and investigate every complaint
  • Schools should provide supportive measures to both the victim and those accused of Title IX violations to preserve or restore access to educational programs or activities even if no formal complaint is filed
  • When the investigative and evaluative process results in a finding of responsibility, the school should provide remedies to restore or establish access to educational programming and activities
  • Schools must use due process protections similar to those provided in criminal cases: a presumption of innocence, written notice of allegations, an equal opportunity to review collected evidence, and the opportunity for cross examination in Title IX proceedings (subject to rape shield laws)
  • Schools must hold a live hearing, in which each party could be represented by an advisor and the advisor could conduct cross examination of witnesses
  • Schools that offer an appeal process must offer it to both parties

In addition, Indiana universities and schools:

  • Would be required to investigate a Title IX complaint only if they have actual knowledge of sexual harassment that occurred in the school’s educational program or activity against a person in the United States
  • Could be held liable under Title IX only if it were deliberately indifferent to known sexual harassment

The proposed rules also result in an about-face on mediation, which was previously prohibited under Title IX.

The reorientation of Title IX to include protection for the rights of and the provision of services to those accused of Title IX violations would be a monumental shift. Indiana universities and schools would need to revisit their current Title IX policies to incorporate due process protections in the form of a quasi-criminal proceeding, a level not previously required in Title IX policies.

But, if adopted, the regulations would also narrow the types of complaints in which universities and schools would be required to take action.

What is Controversial about the Proposed Title IX Regulations?

Some complain that the pendulum has swung too far in favor of those accused of Title IX misconduct to the detriment of the rights of Title IX complainants. The following aspects of the proposed rules are particularly controversial:

  • The proposed rules narrow the ways in which universities and schools are given notice of alleged sexual discrimination, which could reduce the number of reports the institution must investigate
  • The proposed rules allow mediation of sexual harassment allegations, a prohibition put in place to prevent complainants from being pressured into alternative dispute resolution
  • The proposed rules require a quasi-judicial proceeding and increase the Title IX burden of proof to clear and convincing evidence, which could also thwart motivation to report sexual harassment

The controversy surrounding these and other portions of the proposed regulations and other education legislative factors have delayed the official passage of these regulations. However, DeVos’s 2017 letter redefining the direction of interpreting Title IX, although not binding, cannot be ignored. Schools wishing to avoid the appearance of noncompliance with even the administration’s non-binding notice may well be in a state of flux on Title IX policy and procedure changes. Experienced Indiana Title IX attorneys can help you navigate these waters and develop an effective defense against Title IX allegations.

What Do the Proposed Changes to Title IX Mean for You?

The Trump administration gave notice of the proposed Title IX regulations in 2018 to allow time for the mandatory public comment period. Nearly a year later, the comment period has passed, but we are no closer to having the new regulations in place. When and if new rules are finalized and implemented, educational institutions may have as little as 90 days or as long as 12 months to become compliant.

Schools that anticipate the passage of any of the proposed changes to Title IX rules could get a jump on becoming compliant by modifying their Title IX policies now. In other words, schools could move to include some elements from the proposed rules in their Title IX policies as long as those changes were not inconsistent with the black letter of Title IX or with the meaning behind the Trump administration’s 2017 non-binding guidance.

Anyone accused of Title IX violations during this period of upheaval is dealing with shifting sands. Some schools may be “updating” their Title IX policies to bring them in line with the 2018 proposed Title IX regulations while others may be waiting to see which proposed rules actually become enforceable before they update their Title IX policies. The legal landscape may vary widely from one university or school to the next, making it difficult to predict and enforce a respondent’s rights.

Which proposed changes to Title IX will ultimately be adopted remains to be seen, but you can’t wait for the dust to settle to ensure your rights are protected. Working with experienced Indiana Title IX attorneys who are tracking these legislative changes and familiar with the Title IX processes of different Indiana universities and schools offers you the best chance of protecting yourself against a Title IX complaint.

Tracking the Changes to Title IX, Keffer Hirschauer LLP Can Help

Indiana universities and schools anticipating rule changes may be adjusting their Title IX policies accordingly. Such policy adjustments could greatly impact the claims investigated, the services offered to the complainant and the accused, the rights afforded to the accused, and the very nature of the investigation resolution process. Working with a Title IX attorney who is tracking these changes is key to ensuring the protection of your rights.

At Keffer Hirschauer LLP, we know the stakes are high, so we use our skills, experience, and the close watch of changes to Title IX policy to protect your rights throughout the Title IX process. We partner vigorous criminal defense practice with our thorough knowledge of Title IX, and related legislation, and the current Title IX processes at Indiana schools and universities to give respondents the protection needed to defend against Title IX allegations. Don’t delay. Engaging an experienced Title IX defense lawyer early in the process is key to assuring your rights or the rights of your child are fully protected.

For a free consultation with one of our Indiana Title IX attorneys, call now at (317) 202-1163 or complete our online contact form.

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