College campuses all over the country are required to change the way they investigate sexual assaults on college campuses. However, the standard of proof to find a student "responsible" (aka guilty) is much, much lower than the criminal standard. In other words, it is much easier to be found responsible under Title IX for committing a sexual assault on campus than it is in the criminal court. I have clients found responsible the Title IX offense, but found either not guilty or have had their criminal charges dismissed.
For decades, students accused of sexual assault on campus were afforded very few rights. Now, however, that has changed. Here are the new and improved rights for college students:
Changes to Current Title IX Practices
- Cross-examination. Students will now be able to cross-examine their accusers and witnesses. And this can be done through the attorney (who is usually very skilled in cross-examination) instead of the non-lawyer student.
- College locations - It used to be that if you were a student at a college, and you were sexually assaulted by another college student somewere off-campus that Title IX actions could still be implemented. However, the new rules state that colleges are only obligated to respond to reports of sexual harassment that occurred off-campus if the location is in use by an officially recognized student or institution organization, such as recognized fraternity or sorority housing or athletic housing.
- Colleges will be able to determine whether to use a “preponderance of the evidence” or “clear and convincing” standard as a burden of proof and must use the same standard for all complaints, no matter if they involve student or faculty misconduct.
- Stalking, domestic violence and dating violence are now officially considered examples of sexual harassment under Title IX.
- The definition of sexual harassment is more narrow than previous guidance. It is defined as “any unwelcome conduct that a reasonable person would find so severe, pervasive and objectively offensive that it denies a person equal educational access.” Reports of sexual assault, dating violence, domestic violence and stalking do not need to meet the description of “severe, pervasive and objectively offensive.”
- Colleges are not obligated to handle complaints of sexual harassment that occurs outside the United States. This means any harassment or assault that happens in American education programs abroad would not be covered by Title IX, but the new regulations say institutions “remain free” to apply misconduct policies for programs abroad if they so choose.
- If a Title IX coordinator receives multiple informal complaints of harassment against a single respondent, they will not be required to begin a formal complaint process. The department changed this requirement from the proposed rule, which sought to obligate Title IX coordinators to take action after receiving multiple informal reports against the same person.
- Colleges can no longer use a “single investigator model,” which has one official tasked with investigating, adjudicating and issuing disciplinary sanctions against respondents. The regulations instead require three separate officials to work through separate pieces of a single Title IX complaint process: a Title IX coordinator, who receives reports of sexual misconduct; an investigator, to gather facts and interview parties and witnesses; and a decision maker, to determine sanctions and remedies for parties.
- Colleges must train all personnel involved in the Title IX process and publish training materials on their websites. Training must involve review of the new rule’s definition of sexual harassment and the scope of the application of Title IX to college programs and activities, how to conduct a formal or informal process, and how to “serve impartially,” including avoidance of “prejudgment of the facts at issue, conflicts of interest, and bias.”
- Title IX processes may be conducted virtually, and staff must be trained on relevant technology to conduct remote investigations and hearings. Live hearings will be recorded, by transcript or audiovisually, and will be made available to parties and maintained in college records for at least seven years.
- Colleges must provide evidence related to allegations to parties and advisers at least 10 days prior to requiring a response, and parties will not be prohibited from speaking about the allegations. This means doing away with “gag orders.”
- Colleges are not obligated to follow a specific time frame for responding to reports of sexual misconduct. They are instead required to have “reasonably prompt” periods for carrying out each step in the Title IX complaint process.
Here is a link that explains what a Title IX action is: Title IX - AJ Richman explains
Of course, if you have any questions, please reach out to me!