Many of you may remember the uproar in September when Trump’s Secretary of Education, Besty DeVos, announced she was repealing the Title IX guidelines under the Obama Administration. Various headlines argued that DeVos’s announcement was a huge blow to sexual assault victims and that her new guidelines would protect rapists.
What is Title IX anyways?
“Title IX” refers to school proceedings when a student says she has been sexually harassed or sexually assaulted by another student. Sometimes the student accusing the other student of sexual misconduct (the “complainant”) files the complaint herself. Sometimes, school administrators are required to report misconduct if they know about it.
Once someone has filed a complaint, the Title IX office will do an investigation. If the school ultimately brings charges against the accused (the “respondent”), he will usually have the chance to accept responsibility or to have a hearing. Most often, the complainant and respondent are both allowed to have an attorney or a non-attorney advocate in the room during a hearing. Usually, however, the advocate cannot actually speak during the proceedings. The guidelines under the Obama Administration strongly discouraged cross-examination during Title IX hearings.
If schools don’t follow these special proceedings for sexual misconduct complaints and don’t follow the guidelines issued by the government, they could lose federal funding.
What happens if a student is found responsible?
The punishments for Title IX violations can range in severity, with the most severe punishments being suspension and expulsion. Expelled students have permanent marks on their records, effectively blacklisting them from every other college.
Why is Betsy DeVos changing the Title IX guidelines?
Betsy DeVos and others criticized Title IX investigations and hearings under the Obama administration as lacking fundamental fairness, also known as due process. Some men, for example, were being expelled without any real notice of the charges against them and without an opportunity to defend themselves. Thousands of men punished under Title IX have sued their universities. Many of these lawsuits have been successful.
What is Betsy DeVos changing?
As of now, DeVos has scrapped the Title IX guidelines under the Obama administration and has put temporary guidelines in place. The two main changes in the temporary guidelines are the standard of proof and the length of time a Title IX investigation should take.
The Obama administration’s guidelines encouraged schools to use a “preponderance of the evidence standard.” The preponderance standard is a “more likely than not” standard, meaning that schools must find that the respondent more likely than not sexually assaulted or harassed the complainant before finding responsibility. DeVos’s temporary guidelines suggest that schools use a preponderance standard or a “clear and convincing evidence standard.” A clear and convincing evidence standard is higher than a preponderance standard but less than criminal’s law’s reasonable doubt standard. Under clear and convincing evidence, the school must have a firm belief or conviction that it is highly probable that the respondent sexually harassed or sexually assaulted the complainant.
DeVos’s temporary guidelines also eliminate the requirement that schools complete an investigation in 60 days. Instead, schools just need to be to “reasonably prompt.”
What’s to come?
This letter posted by the Department of Education in September condemns many of the other guidelines under the prior administration, including the rules that schools should give complainants the right to appeal not-guilty findings, that schools should not allow cross-examination, and that schools should not rely on law enforcement investigations. We can, therefore, expect some changes in these areas when DeVos announces the permanent Title IX guidelines.
What you should do if you are the subject of a Title IX complaint
If you are the subject of a Title IX complaint, you should contact an attorney immediately. Not only could the university investigation jeopardize your education and your future career, it could also put you at risk of facing criminal charges. You need an attorney who is experienced in handling both criminal sexual misconduct cases, as well as University Title IX proceedings. At our firm, we have handled Title IX cases at various universities, such as UNC-Charlotte, Davidson, and Johnson C. Smith. Fialko Law has found that conducting our own detailed investigation, including examining social media posts and interviewing witnesses, is key to successfully defending our clients. We have also vigorously defended clients facing charges ranging from misdemeanor sexual battery to felony rape in state court. Call us for a free consultation.