Here We Go Again – The Latest Changes to the Rules Governing Title IX Investigations

On April 19, 2024 the United States Department of Education released the long awaited 2024 revisions to Part 106 of Title 34 of the Code of Federal Regulations (Title IX regulations). These revisions have been in process almost since the date of President Biden‘s inauguration. The architect of the new 2024 Title IX regulations is Catherine Lhamon, Assistant Secretary of Education for Civil Rights, who also held that same position from 2013 to 2017 during the Obama administration.

On several important points the 2024 regulations roll back key provisions of the 2020 Title IX regulations, which were issued during the administration of President Trump. While the US Department of Education’s since rescinded “Dear Colleague Letter of 2011” may have created the framework for the Title IX investigation and adjudication processes currently employed by colleges and universities across America, it was the 2020 Title IX regulations that formalized the process of converting what were once DOE “suggestions“ into enforceable regulations. The process of issuing regulations (as opposed to the much less formal “Dear Colleague Letter”) is much more time-consuming and complex, as it needs to follow the mandates of the Administrative Procedure Act (APA). The APA requires agencies to provide the public with the chance to comment on proposed regulations before they are implemented.

The most notable changes in the 2024 Title IX regulations, as pertains to the investigative and adjudicative processes at postsecondary institutions (colleges and universities), are actually more accurately characterized as reversions to the 2011 era “best practices” guidance. For example, consistent with the 2011 Dear Colleague Letter, the 2024 regulations now permit Title IX coordinators or investigators to be decision-makers as long as they are properly trained and without bias or conflicts of interest. This change was necessary to assist in another change/reversion which eliminates the need for live hearings, mandated under the 2020 regulations, and instead reinstitutes the controversial practice of permitting single investigators to perform not only fact gathering in investigative processes, but to reach final determinations as well. This was known in the Obama era as the “single investigator model”. It was abolished in the 2020 regulations and is now back in full force for those universities that wish to employ it.

Significantly, this change will not impact the live hearing processes employed by many colleges and universities inasmuch as a number of states, including California, mandate live hearings for most Title IX offenses. The 2024 regulations do not supersede those state mandates as pertains to the permitted use of the single investigator model.

Another change in the hearing process for those universities and colleges that employ live hearings is the removal of the requirement that affords the parties the right to conduct live cross-examinations of all witnesses, including the parties. Under the 2020 regulations, cross-examination, specifically named as such, in live hearings must be conducted by an advisor for the individual parties (i.e. parties cannot directly cross-examine each other or any witness).

The 2024 regulations intentionally removed the term “cross-examination” from the regulations (and substituted language that refers to allowing an advisor for each party to ask relevant and not otherwise impermissible questions of other parties and any witnesses (see 34 CFR 106.46(f)(1)(ii)). The 2024 regulations require that the “party questions” be asked by either the decision maker (based upon questions submitted by the parties) or by a party’s advisor. As a practical matter, many schools under the current 2020 regulations have already watered down cross-examination rights based upon creative interpretations of the 2020 regulations on this point, so that at some institutions, such as the University of California system, a party’s “right to cross-examination” has already been reduced to submitting written questions that, if approved by the hearing officer, can then be read to the witness. This, obviously, is not cross-examination as traditionally understood or envisioned in the 2020 regulations.

Not surprisingly, Title IX investigation and adjudication processes on college campuses have become a lightning rod of controversy among groups and individuals with different ideological perspectives. On the one hand, you have champions of due process rights who are legitimately concerned with the relatively light process protections which attend to individuals charged with serious allegations such as sexual assault, dating/domestic violence, stalking, and sexual harassment.

Proponents of greater due process protections point out the low standard of proof utilized in the vast majority of these cases (preponderance of the evidence), the lack of advocacy rights (only advisers are permitted to assist the parties, lawyers are not permitted to act as such in Title IX processes), the lack of real cross-examination, as noted above, the lack of rules of evidence and prohibitions on unreliable forms of evidence, such as hearsay. The lack of established discovery and disclosure procedures, the lack of subpoena powers to compel the attendance of important witnesses or the production of important documents.

On the other hand, there are groups and individuals more concerned with providing a more comfortable and less intimidating environment for complainants (those who allege that they are the victims of the aforementioned types a sexual misconduct). These individuals advocate for a process that is streamlined and sensitive to the emotions and sense of safety of complainants. These individuals assert that a process which provides many of the aforementioned due process protections does so at the cost of further traumatizing alleged victims and creates a hostile atmosphere that results in many alleged victims not even pursuing Title IX charges due to the rigors and stress associated with a robust hearing process that includes traditional cross-examination.

What we are now witnessing is a back-and-forth between Democrat and Republican administrations in which the Democrat administrations’ default mode is in favor of the concerns raised by alleged victims and their advocacy groups, while the Republican administrations’ default mode is to favor the concerns raised by proponents of due process. It is assumed that any future Republican administration will likely once again amend the current 2024 Title IX regulations to swing the pendulum back towards an enhanced protection of due process rights.

The aforementioned back-and-forth, of course, creates confusion and difficulties for colleges and universities who are obligated to implement these regulations, and for those who assist students/staff in an advisor capacity. Hopefully, as this pendulum swings back-and-forth between the two approaches, common ground will be reached to provide reasonable protections for both complainants and respondents and provide certain guidance to the colleges and universities and those professionals involved in advising students and staff so that everyone can depend upon a fair and stable process for investigating and adjudicating these very difficult and impactful cases.