While many advocates of due process rights have heralded most of the changes announced to the Title IX regulations, not everyone is happy. The American Civil Liberties Union (ACLU) – a group that has filed suit to protect due process rights in the past – has filed a lawsuit against the Department of Education over the implementation of these new rules. This time, the group is seeking to prevent the rule changes that would protect the due process rights of the accused.

According to the ACLU, the impending rule changes would “inflict significant harm” on victims of sexual assault and harassment on campus, and that it would “dramatically undermine” the civil rights of those individuals. The goal of the lawsuit is to block the planned implementation of these rules on August 14.

Due Process and the New Title IX Changes

Civil liberties advocates have long argued that the due process protections of Obama-era Title IX rules were too weak. The accused lacked the right to cross-examine their accuser, and in some cases schools would pursue these claims while protecting the anonymity of the reporting party.

The new rules seek to strengthen the due process rights of the accused in two important ways. The first is that it allows a student facing discipline to confront their accuser. The second is the guarantee of a hearing on their case.

The ability to cross-examine the accuser is vital, but it is not limitless. Unlike in a criminal trial, there are important limits on what can and cannot be asked of another party. In fact, the rules bar students from questioning each other directly. Instead, an advisor or attorney must do the questioning. Even then, the line of questions is limited. The attorney or advisor must propose each question to the hearing officer, who will determine if it is relevant to the case at hand. Irrelevant questions will not be put to the witness.

One area that is specifically covered is a party's sexual history. While the rules generally hold a person's sexual history as irrelevant, there are some exceptions. It is possible to discuss a person's sexual history if it could lead to evidence that another person was the real perpetrator. Additionally, any discussion of prior sexual activity is allowable if it establishes consent between the two parties.

The Purpose of the ACLU Lawsuit

The ACLU covers a lot of ground, but it focuses in large part on the new definition of sexual conduct. Under the new rules, only misconduct that is severe, pervasive, and objectively offense to the point it denies a person's equal access to education can lead to a Title IX case. This language is more restrictive than under Obama-era guidance, but comports with the U.S. Supreme Court's definition of sexual harassment.

It remains to be seen if the ACLU's lawsuit will be successful. However, Title IX hearings will continue one way or another. If you are facing a student disciplinary complaint, contact attorney Joseph D. Lento online or call (888) 535-3686 today.