Blog
TITLE IX CHANGES AND HOW THEY CAN AFFECT RESPONDENTS Lawyers
Contents
Title IX Changes and How They Can Affect Respondents
Title IX is a federal law that prohibits sex discrimination in education. It covers areas like athletics, recruitment, admissions, financial aid, and sexual harassment and assault. Over the years, there have been some big changes to how colleges and universities handle sexual misconduct under Title IX—and these changes can have a major impact on the rights of both complainants (the alleged victims) and respondents (the alleged perpetrators).
In 2011, the Obama administration issued guidance that told schools to use a “preponderance of the evidence” standard when investigating sexual misconduct cases. This lowered the burden of proof from the “clear and convincing” standard that many schools had been using. Victim advocates said this would help hold more perpetrators accountable, but critics argued it tilted the scales and undermined due process rights for accused students.
Then in 2017, the Trump administration rescinded that Obama-era guidance. New interim rules were released allowing schools to use either the “preponderance of the evidence” or “clear and convincing” standard. The DeVos administration argued this would restore balance and fairness in the Title IX process. They also emphasized the need for due process protections for respondents, like the right to cross-examine accusers.
The 2020 Title IX Regulations
In May 2020, after a lengthy public comment period, the DeVos Department of Education issued official new Title IX rules. Some of the most significant changes included:
- Narrowing the definition of sexual harassment to mean behavior that is “severe, pervasive, and objectively offensive.”
- Requiring live hearings with cross-examination for sexual misconduct cases at colleges and universities.
- Letting schools use either the “preponderance of the evidence” or “clear and convincing evidence” standard.
- Adding more due process protections for respondents, like written notice of allegations and the right to submit evidence.
Victim advocates worried these changes would deter reporting and allow more perpetrators to go unpunished. But civil liberties groups argued the new rules struck a fair balance between complainant and respondent rights. Still, the regulations were challenged in court, though ultimately upheld.
The Biden Administration’s Proposed Amendments
In June 2022, the Biden administration announced they were planning to overhaul the 2020 Title IX rules. Their proposed amendments include:
- Broadening the definition of sexual harassment back to “unwelcome conduct that is so severe, pervasive, or objectively offensive that it effectively denies a person equal access to education.”
- Removing the requirement for live cross-examination at hearings.
- Allowing schools to use informal resolution options like mediation if both parties consent.
- Requiring schools to offer supportive measures to complainants, not just respondents.
The Department of Education argues these changes will help address the “chilling effect” of the 2020 regulations and make campuses safer and more inclusive. They say the rules went too far in protecting respondent rights at the expense of complainant rights. But critics argue the amendments swing the pendulum back too far in the other direction, undermining due process.
The proposed rules were set to take effect in August 2023, but implementation has now been delayed to October 2024. This allows time for further review and more public input. Until the amendments are finalized, the 2020 regulations remain in place.
How Title IX Changes Can Affect Respondents
For college students or staff accused of sexual misconduct, the evolving Title IX landscape can be confusing. Here are some key ways the changes may impact respondents:
Definition of Sexual Harassment
A narrower definition of sexual harassment makes it less likely for allegations to fall under Title IX and trigger an investigation. But a broader definition widens the range of cases covered. Respondents may face Title IX probes for a wider array of allegations.
Standard of Evidence
A lower standard like “preponderance of the evidence” makes it easier to find respondents responsible in Title IX cases. But allowing schools to use “clear and convincing evidence” sets a higher bar for establishing guilt.
Due Process Protections
More due process rights, like cross-examination, help respondents defend themselves in Title IX proceedings. Removing some protections shifts the balance toward complainant rights.
Informal Resolution
Options like mediation can resolve cases more quickly and confidentially. But critics argue informal resolution lets schools dispose of cases too easily without adequate accountability.
Supportive Measures
Requiring schools to offer supportive measures to both parties helps ensure respondents aren’t unfairly punished before a finding of responsibility. Restricting these measures to complainants provides less protection.
Bottom line: Title IX rights and protections for both complainants and respondents remain controversial and in flux. For anyone involved in a Title IX investigation, it’s critical to have experienced legal counsel to navigate the complex, high-stakes process.
The Role of a Title IX Lawyer
Here are some of the key ways a Title IX lawyer can help protect respondents’ rights and interests:
- Reviewing and responding to the formal complaint and other documents
- Advising on defense strategies and gathering exculpatory evidence
- Negotiating for supportive measures like counseling or academic accommodations
- Cross-examining witnesses and challenging inconsistencies during hearings
- Ensuring proper procedures are followed throughout the process
- Appealing unfavorable rulings
- Guiding respondents to cooperate fully while avoiding self-incrimination
- Helping minimize sanctions and clear student records if found responsible
Navigating a Title IX investigation is complex and high stakes. Even if ultimately cleared, respondents can face damage to reputation, mental health, and future education and career prospects. Having an experienced attorney protects rights and improves outcomes.
Title IX and sexual misconduct policies are constantly evolving. Anyone accused of violations needs knowledgeable legal counsel to secure a fair process and just result. Don’t hesitate to consult an attorney specializing in Title IX defense.
References:
https://www.duffylawct.com/title-ix/respondent-changes/
https://www.duffylawct.com/whats-the-impact-of-title-ix/
https://studentdefense.kjk.com/title-ix-lawyer/
https://www2.ed.gov/about/offices/list/ocr/docs/t9nprm-factsheet.pdf
https://www2.ed.gov/about/offices/list/ocr/docs/202107-qa-titleix.pdf