Due Process Takes a Hit in Proposed Title IX Amendments

The much-anticipated proposed changes to Title IX were released by the U.S. Department of Education (DOE) on June 23, 2022. As expected, the amendments address gender identity and sexual orientation. But the proposal does not stop there.

Due process protections for those accused of Title IX violations were also targeted. These rules were enacted during the previous presidential administration.

The following proposed changes create a system that denies the accused rights currently afforded to them.

Elimination of Hearings

Schools would no longer be required to hold live hearings. The current rule established the ability to cross-examine the person making the accusation. The respondent (defendant) could have a representative scrutinize the accuser’s claims during a hearing to resolve the dispute. If schools no longer hold these hearings, the accused are unfairly hampered in defending themselves.

The Single-Investigator Model

Particularly alarming is the possibility that, should the changes be approved, a single person can act as investigator and judge without any hearing taking place. The accused would also no longer be entitled to inspect and review any evidence obtained during the investigation. Instead, parties would only be guaranteed a “description of relative evidence.” The description does not even need to be in writing. An administrator could provide it orally.

Report Rumored Sexual Misconduct

Under the rules introduced by then-Education Secretary Betsy DeVos, schools only had to react to formally reported Title IX violations. The alleged victim had to initiate an investigation.

The proposed changes would force university personnel to report rumored sexual misconduct to the Title IX office. The schools would be mandated to investigate the alleged conduct, even if the purported victim said they were not harmed.

Lowering the Bar for Sexual Harassment

Two types of sexual harassment were established by the 2020 rules: quid pro quo harassment and unwelcome conduct. Quid pro quo harassment meant an individual was asked to perform sexual favors in exchange for employment or some other favor. Unwelcome conduct had to be "so severe, pervasive, and objectively offensive that it effectively denies a person equal access" to their education.

The proposed rules change unwelcome conduct to mean "conduct that is sufficiently severe or pervasive, that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person's ability to participate" in their education.

Informal Resolution

The DOE rescinded previous guidance in 2017 and declared that informal resolution could be used in sexual assault cases if certain safeguards were implemented. This position was integrated into the May 2020 regulations. This rule is one of the few that is carried over into the proposed 2022 rules.

DOE Receiving Feedback on Proposed Title IX Rules

The recently announced amendments were drafted following a DOE review in March 2021, a virtual public hearing in June 2021, and reviews by the federal Office of Information and Regulatory Affairs and the Department of Justice.

Before the proposals can become law, DOE’s Office of Civil Rights will consider feedback submitted during the public comment period, which ends on Sept. 12, 2022.

The team at Parisi, Coan & Saccocio, PLLC is closely following all aspects of the proposed changes. Our practice is dedicated to Title IX and defending those accused of violating the law’s provisions.

Title IX investigations can have life-changing effects on anyone accused of wrongdoing. If you are a subject in a Title IX investigation, contact us right away. Schedule a consultation by calling (737) 200-2332.