In this article:
- What are the new regulations under Title IX?
- How will Live Hearings affect complainants?
- How can the new regulations benefit respondents?
- Are the new Title IX regulations fair?
What are the new regulations under Title IX?
Title IX of the Education Amendments of 1972 is a federal law that prohibits sex-based discrimination in schools, colleges, and universities that receive funding from the federal government. This law also covers cases of sexual violence, sexual battery, rape, and other sexual assaults taking place in university settings. Title IX has recently been augmented with new regulations that detail how schools must deal with sexual harassment complaints. It defines the rights of complainants (victims) and respondents (accused), and outlines a new hearing process referred to as ‘ Live Hearings.‘ Guidelines are also given for facilitating informal resolution and taking disciplinary action.
‘ Live Hearings‘ is one of the most significant additions in Title IX, as it provides equal opportunity for parties to present evidence and witnesses, even legal counsel and expert witnesses. While it sounds similar to a court hearing, Title IX live hearings are to be facilitated by school counselors, advisors, and trained Title IX coordinators and may be conducted virtually through video streaming.
How will Live Hearings affect complainants?
Many question the purpose and fairness of Live Hearings, arguing that it is biased towards respondents. Some groups claim that this formal process can be intimidating and ‘traumatizing’ to victims, making it a deterrent to filing complaints. Some consider the face-to-face nature of the hearing itself can be stressful to complainants. The new regulations do allow virtual hearings, where parties are placed in separate rooms and communicate via webcam. The rules also state that cross-examination must be done by advisors, not the parties themselves. It ultimately falls on the schools to ensure that enough consideration is given to the complainant, as well as the accused.
But there is one more point of contention here that has greater implications than Live Hearings — the standard of evidence. Under previous guidance, the standard of evidence (the degree of persuasiveness) applied to Title IX investigations is ‘ Preponderance of Evidence.’ This meant that the evidence had to support a finding that the complainant’s allegations were more likely than not true; or, put another way, the evidence of responsibility had to be reasonably convincing to be accepted. Under the new rules, schools can choose the stricter ‘ Clear and Convincing‘ standard, which would require the evidence of responsibility to be more persuasive before the respondent can be found culpable. (In the criminal setting, the standard of proof is very high, “proof beyond a reasonable doubt”). Many are concerned that schools might choose the latter to reduce the number of complaints.
How can the new regulations benefit respondents?
Perhaps one of the most important benefits of the new Title IX regulations is the due process protections it gives to those accused. The perceived and sometimes actual lack of due process in the past has led to the rise of lawsuits claiming unfair Title IX practices. Now respondents will be able to defend themselves properly in a live hearing, before facing serious sanctions including suspension and expulsion. They will also receive written assurance from the school that they are presumed innocent until proven otherwise something that was not required under previously issued guidance.
Are the new Title IX regulations fair?
One aspect of the new Title IX regulations being heralded by its proponents is the stronger emphasis on equal opportunity. While Title IX is already built around the idea of equality, many of the new regulations would appear to strengthen this by giving complainants and respondents equal access to due process. The new provisions under Title IX are not just guidelines, they are mandates that schools must comply with to ensure a safe school environment for students and employees.
If you are looking for advice on a Title IX issue, call to get a free consultation with the attorneys at Marcilliat & Mills PLLC. We have years of experience defending students (and professors) in Title IX matters across North Carolina.
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