New Title IX regulations outline the obligations of schools to address complaints of sexual harassment and sexual assault in their educational programs and activities.
The more than 2,000 page document can be viewed HERE. For those who are short on time, here is a quick crib sheet:
What the Regulations Do:
1. The regulations—for the first time—codify the obligation of schools to address sexual misconduct consistent with Supreme Court precedent;
2. The regulations also codify appellate court precedent requiring colleges and universities to provide basic due process protections when investigating such claims;
3. The regulations prohibit schools from initiating Title IX investigations if the alleged victim is uninterested in filing a complaint;
4. The regulations require schools to abide by the presumption of innocence;
5. The regulations require schools to give accused students sufficient time to review the specific claims against them in order to prepare for interviews and and hearings;
6. The regulations eliminate the single investigator model (often referred to as the “judge, jury, and executioner model”), where one person investigates the complaint, determines responsibility, and metes out punishment. Schools will now have to give accused students an opportunity to present their sides of the story in a live hearing before neutral arbiters;
7. The regulations require schools to allow accused students to cross-examine their accusers through a representative
8. The regulations shield alleged victims from having to come face-to-face with the accused during a hearing and from answering questions posed personally by the accused;
9. The regulations provide “rape shield” protections and ensure that alleged victims are not required to divulge any medical, psychological, or similar privileged records
10. The regulations require schools to make their Title IX training materials available online;
11. The regulations require schools to offer supportive measures (such as course adjustments; schedule changes; counseling; no-contact orders; dorm room reassignments; and/or leaves of absence) for all alleged victims, even those who choose not to file a formal complaint.
What the Regulations Don’t Do:
1. Although the regulations limit the scope of actionable sexual harassment in accordance with the Supreme Court’s ruling in Davis v. Monroe County (1999), the rule does not prohibit schools from going further and prohibiting other forms of conduct, so long as that conduct is not protected speech under the First Amendment. This leaves colleges and universities free to define sexual misconduct broadly and to continue policing student relationships — even where the conduct at issue is legal.
2. Although the regulations require schools to apply one consistent disciplinary standard, they do not stop schools from adopting the lowest preponderance of the evidence standard in all cases.