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New Rules Will Reshape Campus Sexual Misconduct Policies

For years, college students accused of a Title IX sexual misconduct violation were automatically fighting an unfair uphill battle from the moment the report was made. Now, accused students finally have a chance at an even playing field in order to properly mount a defense while receiving appropriate due process.

New Title IX Guidelines will take effect August 14, 2020. These new rules will reshape campus sexual misconduct policies that historically railroaded accused students. Currently, Colleges fail to provide due process to their own students, which often leads to Federal Courts re-reviewing and overturning prior university adjudications.

Since accused students were being treated unfairly at an alarming rate, the Department of Education stepped up in an effort to protect the rights of the accused. Currently, Colleges often stack the deck against the accused student and frequently sway judgment that he or she is already guilty before a hearing even takes place. Basically, the accused student is treated as if he or she is automatically at fault as soon as an allegation is made. After much outcry over the years, The Department of Education hopes some of the new Title IX changes will take away from Colleges over-enforcing sexual misconduct policies, unjustly removing students from campus, and offer more safeguards to the accused student.

We have compiled a few of the significant new Title IX provisions that will take place throughout every step of the Title IX Process:

  • More Stringent Definitions: “Sexual Harassment” is now narrower than it previously was. It is defined as “any unwelcome conduct that a reasonable person would find so severe, pervasive and objectively offensive that it denies a person equal educational access.
    • Stalking, Domestic Violence and Dating violence are now officially considered examples of sexual harassment under Title IX, instead of being stand-alone violations as previously treated.
  • Mandatory Reporters: Typically, mandatory-reporting policies require faculty and staff members to disclose when they hear about potential allegations to the Title IX Office. This even occurred if the accuser did not wish to report. Now, Colleges no longer have to designate most employees as mandatory reporters.
  • Off Campus Incidents: Under the old rules, Colleges got involved in all reported off-campus allegations, even when one of the students did not attend the school. The new regulations state, Colleges are only required to respond to reports off-campus if the location is used by an officially recognized student or institution organization, such as athletic housing, fraternities, sororities, etc.
  • Interim Measures: Colleges almost always would impose interim measures immediately upon the accuser filing a report. These measures included restrictions on the accused freedoms involving campus life, removing the accused from certain classes, or even removing the accused from campus completely. Now, Colleges must presume the accused is innocent prior to the investigation and decision-making stage. This is a major step in ensuring the accused’s rights to due process are properly afforded.
  • Investigative Changes: Previously, Colleges tasked one “official” investigator with the duty of fact-finding, adjudicating, and issuing disciplinary sanctions against the accused. The new regulations instead require 3 separate officials to work through distinct pieces of a single Title IX complaint process:
    • Title IX Coordinator who receives the report; Investigator to gather facts, interview parties and collect witness statements; Decision Maker who determines whether a formal hearing should go forward on the report.
  • Cross-Examination: While students still cannot cross-examine each other directly, Colleges must ensure that both parties have an adviser who will question the other party on their behalf. This is a very important change because if the student retains an attorney, the attorney may appropriately cross-examine all witnesses at the hearing. This alone provides great safeguards to the accused student because his/her attorney may now effectively control all questioning and steer the hearing in a more fair direction.
  • Raising the bar for Standard of Proof: For years, Colleges used the Preponderance of Evidence standard (“more likely than not”) when determining whether sexual misconduct occurred. Now, Colleges are permitted to use a stricter burden of proof: Clear and Convincing Evidence (“a firm belief”), when deciding if the allegations are true.

While the above list is not exhaustive, it does highlight some of the major changes in the accused’s favor. Even though changes are taking place in favor of the accused, it is imperative the accused student contacts an attorney immediately upon learning he/she is facing a Title IX sexual misconduct violation. The only way to truly protect your rights and ensure the above changes are adequately implemented in your case is to retain an attorney who knows how to defend against Title IX sexual misconduct violations. Contact the attorneys at Bleile & Dawson for a consultation day or night. They will aggressively defend you while protecting your rights and reputation.