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Proposed Rule Changes to Title IX During COVID-19 Outbreak

On March 27, 2020, the proposed rule changes to Title IX made by U.S. Secretary of Education Betsy DeVos was approved by the White House’s Office of Budget and Management (OMB), giving DeVos the greenlight to require colleges and universities to cross-examine witnesses during a formal Title IX investigation in order to receive federal funding – without public review. Devos introduced the proposal in November 2018, which was followed by a public comment period that finished on January 30, 2019.

Additionally, the proposed rules require higher education institutions to also investigate all formal harassment reports and attempts to limit what is considered misconduct, arguing that the current rules infringe upon free speech and academic freedom because they are too broad. The Department of Education and Harvard’s Title IX Office – which is responsible for implementing DeVos’ new guidelines upon release – yet to determine when the rule would be enacted.

What Do These Rule Changes Mean for the Accused?

The live hearing model, which includes cross-examination, gives the accused a chance to question the allegations. Schools would have to presume that the accused party is innocent until proven guilty, explain the allegations to both parties, and provide access to all evidence related to the allegations to each party.

Furthermore, the proposed rules give each college and university¬†the option of making Title IX rulings based on the “preponderance of evidence,” which the Obama Administration made mandatory, or based on “clear and convincing evidence,” which is a higher standard to prove guilt. If a school rules Title IX cases based on the latter, this would mean the accusing party will have a higher standard to meet for the Title IX panel to rule against the accused. Again, schools have discretion whether to do this or not.

All in all, these rule changes will greatly benefit the accused.

What Happens Next?

Although Secretary DeVos can publish the amended rules, Congress must first approve them. Congress has 60 days to review¬†the policy and any representative can introduce a “Joint Resolution of Disapproval,” which must pass both chambers and be signed by the president. However, since the White House initially approved the amended rule changes to Title IX, a Joint Resolution of Disapproval would not pass.

If you have been accused of campus-related sexual misconduct in California, Arizona, Texas, or New York, contact Parisi, Coan & Saccocio, PLLC at (737) 200-2332 today. We remain open and available through phone or prescheduled videoconferencing.