Title IX Corner: Federal Government Proposes Changes to Title IX Rules

UPDATE: The deadline to submit comments on these proposed regulations has been extended to January 30, 2019, due to the Department of Education’s website being out of service for two days during the government shutdown. Submit your comments here.

The Trump administration is looking to make its mark on Title IX. To that end, the Department of Education recently published proposed rules governing how educational institutions should respond to sexual violence. The rules would make a number of significant changes to the responses required by school districts and universities.

Perhaps the most controversial change is the requirement that colleges and universities conduct live hearings at which the respondent would be allowed to cross-examine the complainant through an advisor of the respondent’s choosing. This means that if a respondent wanted an attorney, parent, teammate, friend, or someone else to cross-examine the complainant, the institution would have to allow it. Critics of this change argue that it would have a chilling effect on those considering coming forward after a sexual assault and that it would also require colleges and universities to run quasi-courtrooms, which they are ill-equipped to do.

Another proposed change is that institutions would be required to start with a presumption of innocence with regard to the respondent. Many Title IX Coordinators and investigators have pointed out that this means they would have to start with the presumption the complaint is not valid, which would not be an equitable position to take. They argue that best practice is to begin investigations without a presumption one way or the other and wait to draw conclusions until all the relevant evidence has been gathered.

Among a number of other changes, the proposed rules also:

  • allow educational institutions to use a “clear and convincing” standard of proof rather than the lower “preponderance of the evidence” standard;
  • provide a more narrow definition of sexual harassment;
  • reduce notice requirements for institutions to respond to known harassment; and
  • limit the circumstances under which an institution would need to respond to sexual violence by eliminating requirements that they respond to acts taking place off-campus or outside the context of a school-sponsored activity.

The Department of Education will be accepting public comment on the proposed rules until January 28, 2019. After that time, the Department of Education will review the comments and eventually publish a version of the rules that includes responses to those comments. If you would like to give input on these rules, you may provide your own comments here by clicking on “Comment Here!” in the upper right-hand corner.

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Lora L. Zimmer

Health Law and Title IX Attorney at McCarty Law LLP
Lora focuses her practice in corporate and business transactions, with a particular focus on the business and regulatory needs of health care clients. In addition, Lora is a trained Title IX investigator, providing prompt, thorough investigations and objective reporting in response to alleged violations of schools’ sexual misconduct policies.