Warshaw Burstein's Title IX/College Disciplinary Practice Issues Statement on Proposed Changes to Title IX07/26/2022
The current administration released their Title IX Notice of Proposed Rule Making (“NPRM”) on June 23, 2022. This NPRM was released to provide the public with an opportunity to comment before the official rules are issued to replace the current 2020 regulations. As of now the 2020 regulations are still in effect.
Notably, the NPRM grants schools new, overarching discretion over their formal and informal Title IX proceedings. For example, schools may refuse live hearings, lower their evidentiary standards without maintaining one standard across Title IX and non-Title IX proceedings or student vs. faculty Title IX proceedings, and deny two willing parties the right to an informal proceeding. The regulations also grant schools the ability to empower just one individual, including the Title IX coordinator, with the authority of investigator and decisionmaker in formal Title IX proceedings. This individual would assume the roles of judge, jury, and executioner. Title IX coordinators are now required to “monitor” and “seek out discrimination and harassment,” granting them a new proactive duty. Schools’ jurisdiction over Title IX complaints have now been enlarged as well.
As discussed above, the new regulations diminish a respondent’s due process rights. The proposed rules would leave most of the respondent’s rights throughout the process up to the discretion of each individual institution. The NPRM also allows schools to impose a burden on respondents when drafting supportive measures. Overall, the new NPRM does not favor respondents.
Complainants will appreciate the new and more effective protections made available for them. Complainants will also benefit from the proposed pre-approval of cross-examination questions during proceedings. This regulation aims to limit the embarrassment and harassment of all parties, especially victims, while confronting the other party during a Title IX process. Additionally, the class of complainants will certainly grow due to the additional categories of pregnancy discrimination, gender identity discrimination, and the hostile environment section of sex-based harassment. The NPRM also expands who may file a complaint. Allowing almost any third-party, former student, or overseas student to bring a claim. The proposed rules expand the definition of a mandatory reporter to almost any faculty member, with only a few limitations.
For respondents, these regulations mean that your proceedings may be more difficult going forward. Schools may subvert your assumption of innocence, decrease your right to reasonable time throughout proceedings, or negate your right to due process in a number of other ways. This means that much of the respondent’s battle may be within the appeals process. It is imperative that students are extra cautious when speaking with others given the proposed mandatory reporting and third-party complaint regulations.
For Complainants, these regulations mean that you may be entitled to far more protections and remedial measures from your institution. However, be sure that you want a complaint filed before discussing allegations with faculty, administrators and/or staff, as they may be required to report and file a complaint.