Title IX

What You Need to Know About the New Title IX Regulations

All the important highlights from the 2,033-page document released by the Department of Education.

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The Department of Education has finally released its new Title IX regulations, which both restore critical due process protections to campus sexual misconduct proceedings and make it harder for universities to sweep allegations of such misconduct under the rug. 

If you've looked at the new regulations, you probably noticed that the document issued yesterday is more than 2,000 pages long. What are the essential things you need to know?

First, the mere fact that the final document is 2,033 pages long demonstrates just how seriously the Department of Education took the feedback it received from the more than 100,000 commenters who participated in the notice-and-comment process. The regulations themselves start on page 2,008, and the remainder of the document is devoted to addressing, in great detail, the comments received and the rationale for the ultimate decisions. This stands in stark contrast to the previous administration's April 4, 2011 "Dear Colleague" letter, which—in 19 pages and with no public input whatsoever—led to the widespread dismantling of due process in campus sexual misconduct proceedings. 

The new regulations address two broad categories of institutional obligations. The first is jurisdictional: When does a university have a responsibility, under Title IX, to take action? The second is substantive: When a university does take action, what must it do? 

In terms of when a university must take action, the new regulations use a speech-protective definition of sexual harassment that mirrors the definition established by the Supreme Court in Davis v. Monroe County Board of Education (1999). Under the new rules, hostile environment sexual harassment is defined as "unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school's education program or activity." This is a critically important provision because the previous administration had employed an overly broad definition—"any unwelcome conduct of a sexual nature"—that led students and faculty to be punished for speech and expression protected by the First Amendment. The regulations also make clear that Title IX prohibits physical sexual misconduct such as sexual assault, dating violence, domestic violence, and stalking.

The new regulations also make clear that universities must respond to any sexual harassment that takes place "in the school's education program or activity." This includes not only incidents that occur on school grounds, but also incidents that occur in contexts where the university has "substantial control," including in buildings owned or controlled by recognized student organizations (such as fraternity houses.) 

The regulations also contain a lot of information about how schools must conduct their Title IX grievance procedures. While Title IX has long required a "prompt and equitable" process, colleges' handling of these cases in recent years has been anything but equitable. Ever since the 2011 Title IX Dear Colleague letter—which eliminated important procedural protections for the accused and ushered in an era of aggressive federal investigations that led schools to abandon even more due process protections—students have been forced to defend themselves in biased, inquisitorial proceedings, often with little to no information about what they allegedly did wrong. 

Those days are now over. From the start of a proceeding, universities must now provide students with detailed notice about the allegations against them. Noting that "a party cannot be fairly expected to respond to allegations without the allegations being described prior to the expected response," the regulations require universities to disclose, prior to any interview, "the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment under [the regulations], and the date and location of the alleged incident, if known." The regulations also provide that the notice "must include a statement that the respondent is presumed not responsible for the alleged conduct." The presumption of innocence is, of course, one of the core principles of our justice system, but it is strikingly absent from campus policies: according to a recent survey by the Foundation for Individual Rights in Education (FIRE), where I am a senior fellow, more than two-thirds of the nation's top universities do not explicitly guarantee accused students the presumption of innocence. 

The regulations also require universities to allow both parties "to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint," even if the university does not plan to rely on that evidence in making its determination. In the years since the Dear Colleague letter, more than 600 students accused of sexual misconduct have sued their universities alleging denials of due process, and suppression of exculpatory evidence is a common theme in these cases. This will make it much harder for universities to suppress either inculpatory or exculpatory evidence. 

Transparency is a theme throughout the new regulations, which is of critical importance to ensuring a fair and unbiased process given universities' penchant for secrecy. The regulations require not only that universities train Title IX investigators and adjudicators using materials that do not "rely on sex stereotypes" and that "promote impartial investigations and adjudications," but also that a university "must make these training materials publicly available on its website." Due process advocates have long known that universities rely on biased training materials, but the materials themselves have been extraordinarily hard to come by—universities have only produced them when legally forced to by litigation discovery or FOIA requests. Given that even the fairest process on paper is meaningless if the adjudicators are biased, the requirement of unbiased, publicly available training materials is one of the most important provisions of these new regulations.

The other game-changing provision is the requirement that universities adjudicate formal complaints of sexual misconduct using live hearings at which the parties, through their advisors, are permitted to conduct cross-examination. This means that universities can no longer use the "single investigator" model in which one person effectively serves as detective, prosecutor, judge, and jury—a model that has led to terrible abuses of power and that, even under the best of circumstances, rests a tremendous amount of authority in one person with, as one federal judge put it, "little effective power of review." It also means that, in cases that so often turn entirely on credibility, the parties will have the benefit of cross-examination, which the Supreme Court has called "the greatest legal engine ever invented for the discovery of truth." The regulations also make clear that cross-examination can only be done through an advisor, rather than by the parties themselves, out of concern for the possibility that "parties will feel traumatized by the prospect and reality of personal confrontation." 

It is difficult to understate the importance of these regulations for due process on campus. After a careful and lengthy rulemaking process, the Department of Education has taken meaningful steps to ensure that the laws it enforces are not used to violate students' most fundamental rights.

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  1. Joe Biden is exempt, right?

    1. Biden was vetted by the highest levels of Democratic Party leadership in 2008. If they concluded he had nothing disqualifying in his past, that’s good enough for me.

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    2. Anybody whose last name is “(D)”.

  2. You would think in the light of the Tara Reade case bringing uncritical #MeToo allegations to a screeching halt that the twitterati would be at least someone ambivalent about these due process reforms, but you would be a fucking idiot. Even the ACLU tweeted against them.

    1. At this point, what did we really expect?

  3. Can the government do anything that doesn’t require a 2,000+ page document?

    1. The regulations themselves start on page 2,008, and the remainder of the [2,033 page] document is devoted to addressing, in great detail, the comments received and the rationale for the ultimate decisions.

      Only 25 pages! That’s incredibly short.

    2. No. In fact, I’m amazed it was that short.

    3. They could have done it in one sentence:

      “Please refer all criminal allegations to law enforcement”

  4. the mere fact that the final document is 2,033 pages long demonstrates just how seriously the Department of Education took the feedback it received

    That is, the DoE considers this a joke.

  5. Trump obviously wants more rape on colleges /sarc

  6. In the end it is a 25 page document with 2008 pages of CYA.

    1. The chances of these regulations being contested all the way up through the appeals courts is probably close to 100%.

      Those 2008 pages of CYA are probably in there to get them through the appeal processes–and maybe through the Supreme Court.

  7. One of the unintended consequences of the older model may have been that, while women were assumed to be credible by universities when they made their allegations, the stigma associated with being found guilty of sexual assault surely went down when the determination was made by a kangaroo court.

    Like convicting 16 year old girls of distributing child pornography for sending pictures of themselves to their boyfriends from their smartphones or putting 18 year olds on the sex offender list for having sex with their 17 year old girlfriends, the stigma associated with having been called out as a sex offender by a school these days probably isn’t what it used to be.

  8. The regulations require … that universities train Title IX investigators and adjudicators using materials that do not “rely on sex stereotypes”

    I’m sure *that* stuff will fly when the public gets to see it.

    “The example used the sexist term ‘blouse’!”

    1. USMC and Navy all wear blouses as part of their combat uniform.

      1. The Air Force calls the shirt a “blouse” too, unless they’ve changed since I was in.

  9. What is the rationale, legal fiction, or other excuse for “Title IX prohibits physical sexual misconduct such as sexual assault, dating violence, domestic violence, and stalking”? Why are these not ordinary criminal complaints handled by police, even if that means college police? How do such huge swaths of ordinary police powers get dumped into the laps of administrators instead of police? How do federal administrators get to write bureaucratic letters and override centuries of common law police powers?

    I mean, besides FYTW.

  10. The open question is why these procedures need to be written and rewritten by bureaucrats rather than congress.

    One of the reasons, I suspect, is because if it really were a law, Supreme Court review would be more likely to strike it down? “Congress shall make no law . . . ” We’re not violating the First or Fifth Amendments, we’re just trying to write rules that are in compliance with earlier decisions by the Supreme Court and legislative responses to those decisions!

    I don’t suppose any democratically elected politician is eager to go on the record to authorize the cross examination of rape victims either. Just because the victims of crime should be cross examined by their accusers doesn’t mean going on the record in support of that will be a winner for any random politician in an election year.

    Why wouldn’t their opponents in both the primaries and the general election accuse them of being insensitive to rape victims?

  11. Here’s a really out of the box idea: Do not let educational institutions have any judicial powers at all. The police of the adjoining political district should be the “duly constituted authority” for all criminal behavior.

    1. Are you gonna call the cops every time someone’s dorm room smells like weed, every time someone is accused of under age drinking, or every time someone cheats on a test?

      1. dorm room smells like weed – If you actually care about that as a crime, then yes you should absolutely call the cops.

        accused of under-age drinking – Again, against the law and in the proper scope of real cops to investigate and prosecute.

        cheats on a test – This and pretty much only this is in the appropriate scope of authority for academic bureaucrats to investigate and potentially punish. It’s also not a crime so the police won’t prosecute it.

      2. Either that or learn to mind your own fucking business. Think of this as a growth opportunity.

    2. Or even the institution’s police. Anything but a bunch of administrating bureaucrats.

      1. Are you gonna call the cops every time someone in high school gets caught smoking cigarettes under the bleachers?

        No. Calling the police is not the solution.

        1. The hope is that if one was required to report to the police rather than some nameless residential life bureaucrat it would discourage people from reporting trivial incidents.

        2. Agreed. Look at all the previous reports where the commentariat got up in arms because some grade school a-hole principal called the cops when Tekessha brought an aspirin to school or Caleb called Jordan a lezzy.

        3. Calling the police is not the solution.

          Of course it is.

  12. If it takes 2008 pages of regulation to insure a university is doing any job in a complete and fair manner, perhaps the university ought to just not be vested with that authority.

  13. Thank you for saving others time and travail in reviewing the entire 2000 pages, although I have to admit I may take a stab at some of it.

    This is the most heartening news in a good while.

    I wonder if the “activity” the regulation refers to includes online behavior.

  14. Given that even the fairest process on paper is meaningless if the adjudicators are biased,

    So this is the bottom line isn’t it? Title IX administrators are still the insane activists they always have been. That group will select and promote those who follow their lead in understanding the “training materials” are window dressing.

    As the saying goes personnel is policy.

    1. That goes to the core of the issue. As long as universities think they are social justice factories and the campus disciplinary committees are packed full of ideologues who really do think every man is a rapist. Well you have can 200,000 pages of regulations and still get the same bias results. Hence why I don’t think universities can be trusted with this kind of power, period.

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