Title IX Update: US Dept of Education Releases New Guidelines for Campus Sexual Assault Allegations

The United States Department of Education has released new guidelines on how colleges and universities are to handle sexual assault allegations on college campuses. Secretary of Education Betsy Devos said that these new regulations will allow colleges and universities to “combat sexual misconduct without abandoning our core values of fairness, presumption of innocence, and due process.”

For the better part of the decade, individuals who were accused of sexual assault had scant protections. Specifically, there were reports that colleges and universities felt obligated to side with the accusers based on Obama Administration guidelines that were issued in 2011 and 2014. Those guidelines threatened severe repercussions (i.e. losing federal funding) if they did not ramp up their investigations. They also led to many schools starting investigations based on a belief that they should believe the complainant instead of applying a presumption of innocence. Now, although the new regulations are not perfect, accused students should find themselves with more rights and protections when confronted with potentially false allegations of sexual assault and harassment.

What is Title IX and How Does it Relate to Sexual Assault Allegations?

Title IX is a federal civil rights law signed by President Richard Nixon in 1972 as part of a larger Education bill. At its core, Title IX prohibits discrimination on the basis of sex in educational institutions when those institutions receive federal aid. Title IX also makes schools responsible for taking steps to prevent sex-based harassment, including sexual harassment, and for responding quickly and effectively to harassment when it occurs.

What Are the New Changes to Title IX Investigation Procedures?

The new regulations provide a number of increased protections to students who have been accused of sexual misconduct or sexual harassment.

First, and perhaps most importantly, the guidelines require that a school apply a presumption of innocence. Previously, schools were permitted to start from a position of assuming that a complaint must be true. Under the new rules, the school must require some evidence in order to find an accused student responsible and impose sanctions.

Second, the regulations modify the recommended burden of proof which schools should apply in deciding whether or not the accused has committed a violation. Under the previous regulations, schools were encouraged to apply a “preponderance of the evidence standard.” Under a preponderance of the evidence standard, the school would find against the accused if the fact-finder found that it was 51% or more likely that the accused committed a violation. The new guidelines allow schools to require “clear and convincing evidence,” which is a higher standard than 51%. This is the standard used in many family court proceedings such as child custody cases. It is, however, still a lesser burden than requiring proof beyond a reasonable doubt as is usually required in a criminal case. Schools may also continue to use the preponderance of the evidence standard. But if they do so, they must still apply that lower standard to accusations made against their own employees.

Third, the new rules require that the accused receive a live hearing in front of the decision maker. The previous regulations encouraged the use of the single investigator model. Under the single investigator model, a school that had received a complaint would then retain an investigator to resolve the complaint. This would often be an outside attorney or retired law enforcement officer who had been retained by the school specifically to resolve these issues. That investigator would review the complaint, speak with the complainant and the accused, interview potential witnesses, review any other evidence provided by the parties such as text messages or medical reports, and then make findings of fact as to whether or not the sexual harassment or assault had occurred. Depending on the school, the investigator may also recommend the punishment for an offense, but at some schools, a board of faculty members would decide on punishment without hearing from the accused student directly.

The new rules eliminate this procedure. No matter what standard of proof a school decides to apply, the accused student is now entitled to an in-person hearing in front of the person or people that will make the decisions as to guilt or innocence and the penalty in the case of a finding of guilt. This is a significant change as it ensures some level of due process. Instead of simply giving a statement to an investigator and being found guilty, the accused student may now present a defense to the people making the decisions.

Fourth, the rules also provide that the accused shall have the opportunity to cross-examine the complainant. This generally does not mean that the individual student gets to ask questions of the complainant himself or herself. Instead, the accused’s faculty counselor or attorney may ask the questions or submit the questions to the fact-finder for them to ask the questions. Further, the parties may appear remotely by video. Cross-examination allows the accused student the opportunity to challenge the complainant’s story and demonstrate potential credibility problems or motive to fabricate. This is an extremely important change because sexual assault cases often hinge on how credible the alleged victim is.

Fifth, colleges and universities will now only be responsible for investigating cases that occurred within their programs or their activities. For example, a school would not be liable for an alleged assault that occurred in an apartment that is not affiliated with the school.

Finally, schools may not impose any sanctions on an accused student until the case has been adjudicated. A school may still, however, impose temporary restraining orders prohibiting contact between the parties. A school may also remove a student from campus if there is a finding that the student is an immediate, dangerous risk to safety.

These regulations become effective on August 15, 2020. Accordingly, they will be in place by the time students return to campus for the fall semester. There is no doubt that there will be some growing pains with these regulations, and it is likely that there will be legal challenges to them as well. The regulations also do not necessarily prevent schools from continuing to enforce rules which are worse for the accused than those suggested by the guidelines. However, they remove much of the pressure on schools to enforce rules which give the accused no opportunity to defend themselves. Therefore, this is an important step in providing accused students with a fair opportunity to present a defense. Contrary to some negative reporting in the press, the guidelines do not suggest that schools should not take complaints seriously or believe the accused. They simply add some level of due process to the proceedings so that accused students have a chance to defend themselves and obtain a fair result.

How Can a Title IX Defense Attorney Help if You Are Accused of Sexual Misconduct on Campus?

The processes currently in place prior to the new regulations gave very little thought to the rights of the accused. However, many schools may begin to change their policies in order to implement the new guidelines, and each school’s disciplinary processes will likely be somewhat different. For that reason, anyone accused of sexual misconduct should not attempt to go it alone. Nor should they allow any kind of embarrassment they may feel to silence them.

Given the potential consequences, which can include expulsion from school without a refund and a permanent notation on the students transcript, someone accused of this sort of sexual misconduct must reach out to an attorney as quickly as possible. An attorney who has previously represented other students at one of these hearings can best guide the accused in how to defend themselves. The first days following an accusation are among the most important and if you have been informed you are under investigation, there are certain steps that must happen as quickly as possible. An experienced defense attorney may be able to help you with the following things:

Preparing to give a statement to the school’s Title IX Investigator
Reviewing and editing written submissions which may be required as part of the investigation
Conducting a thorough investigation into the allegations, including locating third-party witnesses and obtaining witness statements
Obtaining and preserving digital and social media evidence such as text messages, Facebook posts
Providing advice on how to avoid criminal charges while responding to the allegations
Helping you to understand the school’s procedures for the investigation and potential appeals and making sure that you understand all of your rights
Presenting a defense at a hearing and conducting cross-examination as schools begin to provide enhanced protections

Facing Criminal Charges or a Campus Investigation? We Can Help.

Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges or are under investigation by the police or campus authorities, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We also have extensive experience defending clients against allegations of sexual misconduct in Title IX investigations. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.