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New Regulations for Title IX – Here’s What to Watch For

The U.S. Department of Education celebrated the 50th anniversary of the signing of Title IX by announcing proposed regulatory changes designed to “restore crucial protections” that were “weakened under previous regulations.” What does this mean for students and staff who want to bring a claim or defend against allegations of wrongdoing?

The proposed new regulations make significant changes to the definitions that apply to sexual harassment, the procedural requirements for Title IX cases, and the scope of Title IX coverage. While the new regulations are officially open for comment and could change before implementation, many attorneys expect the changes to take effect later in the year essentially in their current format.

Gender Identity and Sexual Orientation

One of the key components of the new Title IX regulations is the explicit pronouncement that Title IX anti-discrimination protections apply to actions taken on the basis of gender identity or sexual orientation. Preventing someone from participating in a school program or activity “consistent with their gender identity” would be a Title IX violation under the new regulations.

However, this pronouncement does not settle the controversy over gender identity in determining eligibility for school sports programs. The Department of Education said it will initiate a separate rulemaking proceeding to address eligibility for participation on “male or female” athletics teams.

Burden of Proof in Sex Discrimination, Harassment, and Assault Cases

Under the current rules, those who bring a claim for sexual harassment, discrimination, or assault must prove the allegations by “clear and convincing” or the “preponderance of” evidence. While not as high a hurdle as the “beyond a reasonable doubt” standard used in criminal cases, the clear and convincing burden of proof standard is considered much more difficult to meet than the former standard.

The proposed regulations would restore that former standard for the burden of proof, which is the preponderance of evidence standard. Essentially, someone bringing allegations would only need to show that it was “more likely than not” that the alleged form of discrimination occurred.

Those advocating for complainants had complained that the clear and convincing standard was too hard to prove and that it deterred complainants from filing claims. These advocates say that returning to the preponderance of evidence/more likely than not standard allows the decisionmaker to weigh witness statements and make a decision without corroborating evidence, which can be hard to find.

Those who defend the rights of respondents in Title IX cases are concerned that a return to this standard increases the likelihood that innocent parties will be found guilty and face life-changing consequences. Students or staff facing allegations of sexual misconduct or any Title IX violation will be in greater need of legal representation to protect their rights during the investigation and campus disciplinary proceedings.

Elimination of Live Hearing and Cross-Examination Requirements

Another key component of the proposed new Title IX regulations allows schools to hold individual separate meetings with the parties involved in lieu of a live hearing with cross-examination. Proponents note that this change gives colleges and other institutions the flexibility to tailor proceedings and reduce the impact and costs of proceedings.

Since courts have been divided about whether live hearings and opportunities for cross-examination are the only means to satisfactorily assess the reliability of witnesses, as a practical matter, even if the requirement is dropped, schools may decide to continue to hold hearings to avoid lawsuits from respondents alleging that school proceedings without hearings violated their due process rights.

Allowing a Single Investigator Approach

Current regulations do not allow educational institutions to use a “single investigator model” to resolve sexual misconduct cases, but the new regulations would allow these proceedings. Prior to the current rule, many schools would have a single party or tribunal investigate Title IX allegations and issue a ruling on guilt or innocence. This model can be cost-effective and minimizes stress on those bringing accusations.

However, allowing the same party who investigated the allegations to effectively serve as the judge, jury, and executioner can limit the protections available to the accused. Advocates for respondents express concern that the single investigator model infringes on due process rights and could increase the potential for bias in proceedings.

The Definition of a Hostile Environment

The proposed Title IX regulations essentially revert to the previous definition of when a hostile environment constitutes sexual harassment. An environment would violate the Title IX threshold if unwelcome sex-based conduct is either sufficiently severe or sufficiently pervasive that it limits someone’s ability to participate in or benefit from a program or activity. This expansion of the definition will require schools to investigate a greater range of situations and makes it much easier for someone alleging that they are suffering from a hostile environment to prove that they are eligible for some form of relief.

When to Expect Changes

Although Title IX is a federal law augmented by federal regulations, this law directs schools on how they are supposed to handle allegations of wrongdoing. Each case is governed primarily by the school’s rules on Title IX enforcement.

Some schools may begin to take measures to adopt standards in line with the proposed regulations in instances where they can safely do so. Others may wait for final rules to see whether input from commenters will result in amendments to proposed regulations. There is a good chance that some of the regulatory changes will be challenged in court, so it is possible that some schools will postpone significant procedural changes as they wait for the results of the judge’s rulings on particular issues.

In the previous decade, schools have had to adapt to three rounds of significant changes in standards and procedures for handling allegations of sexual misconduct and other forms of harassment and discrimination. Throughout the changes, the key conflicts usually do not involve disagreements over what constitutes wrongdoing so much as how allegations of wrongdoing should be addressed administratively.

Title IX proceedings often have a permanent impact on the lives of those involved. To protect their rights and future well-being, anyone seeking to file a claim for a violation or defending against an accusation should consider consulting an experienced Title IX attorney for advice. At Duffy Law, LLC, we are committed to fair enforcement of Title IX goals and fiercely advocate on behalf of complainants and respondents. For a confidential consultation with a member of our experienced legal team, contact us now.

Felice Duffy

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Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.