Changes to Title IX Allow Accusers to be Questioned

If you are facing a Title IX hearing that involves sexual misconduct charges, you may be unclear on what the process involves. Gaining an overall understanding of the process is helpful, but Title IX law can be complex—especially with the more than 2,000 pages of Title IX regulations recently released by U.S. Secretary of Education Betsy DeVos. Therefore, once you grasp the basics addressed below, contact attorney Joseph D. Lento with the specifics of your case. There is simply no time to waste when your future is on the line.

Title IX

 Title IX is a federal law that prevents sex discrimination in educational institutions that receive federal funding. Within these requirements, the law allows for the creation of regulations relating to colleges and universities' sexual harassment and assault policies and related adjudication procedures, and these regulations (which go into effect on August 14, 2020) have the force of law.

Title IX standardizes much of the process so that all schools must follow the same protocol when dealing with claims of violations under the law. Indeed, schools can be held accountable for failing to handle sexual misconduct claims swiftly and appropriately.

Major Changes in Title IX Regulations

The new Title IX regulations run the gamut of collegiate-related sexual harassment and sexual assault claims—from the very nature of the claims to the procedures used to litigate them.

Title IX rules define “sexual harassment” more broadly than the term is commonly understood: It includes sexual assault, dating violence, domestic violence, or stalking. It also prohibits any “quid pro quo” demands—when a school's employee might demand someone perform a sexual act in order to escape punishment or receive some benefit from the institution. The code also prohibits sexual harassment that creates a hostile environment; however, on this point, the new requirement is much narrower than the previous iteration. Under the new regulation, a hostile environment occurs only with “unwelcome conduct that is so severe, pervasive, and objectively offensive that it denies a person equal educational access.”

Another change in the regulations—colleges are only required to adjudicate claims relating to conduct that took place on-campus, off-campus but in the course of a school-sponsored activity or event, or in buildings owned by official student organizations over which the school has “substantial control” (e.g., fraternity and sorority houses). Beyond that, colleges and universities may handle claims that occur off-campus as they choose, and they are not obligated to handle complaints that occur outside of the United States (such as those involving students in study abroad programs).

How schools adjudicate sexual misconduct claims is also changing, to a model that more closely follows criminal litigation. For example, schools could function as more of the accuser's advocate, believing the accuser's allegations as true. But now, schools are more in a position akin to a prosecutor. The accused is presumed innocent during the entirety of the proceeding, and the school bears the burden of proving that the allegations are true.

Further, schools can no longer rely on a single investigator to interview, review, and make a determination. Under the new rule, three officials must handle the procedure: a coordinator to receive reports of sexual misconduct; an investigator to interview the parties and any witnesses and generally fact-gather; and a decision-maker to determine any remedies and sanctions.

In keeping with the criminal court model, schools can no longer make a determination based solely on a paper review of interviews. Instead, schools must also hold a live hearing where both parties and witnesses can be cross-examined by the parties' advocates. Since these cross-examination questions can be crucial to defending the respondent on charges, they also must be approved by hearing officials to ensure they comply with all regulations. Just as in federal courts, neither party's sexual history is open to questioning.

Schools must also adopt a set standard of evidence for the accuser's guilt. They must choose between either a “preponderance of the evidence” or a “clear and convincing evidence” standard for this litigation.

Although no specific timeline is required for responding to sexual misconduct claims, schools must be “reasonably prompt” in handling each phase of the investigation and hearing process. Parties have at least 10 days to respond to evidence related to allegations, and they are free to speak of the allegations publicly, meaning there are no “gag orders.”

Put your Case in the Hands of an Experienced Student Disciplinary Hearing Lawyer

Student disciplinary hearing attorney Joseph D. Lento has extensive experience in Title IX cases—and especially in cases in which schools held hearings giving the accused an opportunity to cross-examine the complainant, even before the most recent changes in the law described above. Moreover, Lento has also successfully defended those accused of sex offenses (such as rape and sexual assault) in criminal courtrooms. 

Make no mistake: Joseph D. Lento's knowledge and expertise with criminal defense and Title IX can help ensure a solid defense against serious allegations. He knows the ins-and-outs of Title IX, and he also has unparalleled experience in being able to perform an effective, and respectful (as necessary in light of the dynamics involved with Title IX cases) cross-examination. He has been defending the rights of the accused for many years, and he is ready to help you develop a strong defense as well.

If you need representation in a Title IX case, contact Joseph D. Lento online today or call 888-535-3686 to discuss your defense options.