The U.S. Department of Education made significant changes to the way Title IX investigations and hearings are conducted and announced the final regulations on May 6, 2020. Since the force of law is behind these changes, college students will be given due process rights when reporting or being accused of sexual misconduct.
The new rules become effective on August 14. Here are several important provisions students and parents must know about the revamped Title IX laws.
Clear and Convincing Evidence Standard
The implantation of the full force of law means that colleges and universities must conduct Title IX investigations and hearings in the similar manner as the criminal justice system, which is proving guilt beyond a reasonable doubt. There now must be “clear and convincing” evidence that “unwelcomed conduct” occurred and that the act was “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education.”
According to the previous administration’s guidelines, colleges and universities were encouraged to use the “preponderance of evidence” standard, which means a college student “more likely than not” sexually assaulted another student, which is a lesser burden of proof to fulfill.
Less Involvement from Schools
Colleges are not required faculty and staff members to act as “mandatory reporters,” who would inform the campus Title IX office of a potential violation. In addition, colleges do not have to use a common “single-investigator” model, meaning an investigator reports on the incident and recommends a finding without holding a hearing.
New Requirements for a Notice of Allegations
Colleges and universities are required to produce a written notice of allegations after they receive a formal complaint of sexual harassment. Under the new rules, this notice must now include all the details of the alleged incident, such as the parties involved, the date and location of the alleged incident, and the specific action construed as “sexual harassment.”
Furthermore, the notice must provide sufficient time for the accused party to respond before any initial interview or hearing. Parties must know that they have a right to an adviser and making any false statements is prohibited.
Added due process rights means colleges and universities must hold live hearings and allow the students’ advisers to cross-examine one another, which means the accused or the accused party’s adviser may question the accuser’s version of events. While most schools do not allow cross-examination, public universities in Ohio, Michigan, and Kentucky have already started this process in 2018.
Cross-examination gives the accused party to question the evidence and testimony provided by the accuser and the Title IX panel to determine the credibility of the accuser’s evidence, as well as evaluate their body language and demeanor.
The Importance of Hiring a Lawyer as a Title IX Adviser
Cross-examination is a skill that many experienced trial lawyers have. An effective cross-examination entails substantial preparation, critical thinking, and being able to immediately counter and react to unexpected answers and rulings.
At Brad Bailey Law, our legal team has nearly four decades of experience handling the most serious state and federal cases in Massachusetts, New York, and New Hampshire, including crimes allegedly committed by college students. We have the knowledge and skill to effectively cross-examine the other party on behalf of our clients and protect their rights and freedom.
If you have been accused of campus-related sexual misconduct, contact Brad Bailey Law today at (617) 500-0252 and schedule a free consultation. Get aggressive and responsive legal representation right now!