When a college student faces accusations of sexual misconduct, they face the possibility of both criminal charges and discipline under Title IX by their school. School disciplinary processes under Title IX have life-changing consequences in and of themselves, such as expulsion, and can strongly influence criminal proceedings.
The new Title IX regulations aim to protect both the accuser and the accused. According to Assistant Secretary Kenneth L. Marcus of the Office for Civil Rights, “It marks the end of the false dichotomy of either protecting survivors, while ignoring due process, or protecting the accused while disregarding sexual misconduct. There is no reason why educators cannot protect all of their students – and under this regulation, there will be no excuses for failing to do so.”
For accusers, the new regulations require:
- Clear and accessible options to report sexual misconduct.
- Extend “rape shield” privileges for medical and psychological records.
- Holds schools accountable for off-campus harassment at school-owned homes such as sororities and fraternities, and events that the school has “substantial control” over that occur off-campus.
- Shields them from being personally confronted by the accused at a hearing.
- Gives them a right to appeal the outcome of the hearing and have a say in how the school responds.
- Requires schools offer supportive measures such as living arrangement modifications or no-contact orders.
These supportive measures must be offered even if the accuser chooses not to go through with a formal complaint. Accusers are protected from retaliatory punishment if the claim is not proven, and schools are encouraged to give immunity for other misconduct such as underage drinking that comes out during hearings.
For the accused, the new regulations:
- Seek to guarantee a fair process, including the right to written notice of the allegations.
- Limiting investigations to formally raised accusations.
- The right to an advisor, such as an attorney.
- The right to cross-examine and challenge evidence and to submit evidence at a live hearing.
- The right to appeal the outcome of such a hearing.
Such hearings may be done remotely with the accused and accuser in separate rooms. Schools must select one of two standards to prove an allegation: either a preponderance of the evidence (more likely than not) or the higher standard of clear and convincing evidence (a notch below the “beyond a reasonable doubt” needed for a criminal conviction) and apply the standard evenly to all cases.
Schools are prohibited from using Title IX in a manner that that limits 1st Amendment rights, reversing a concerning trend of viewpoint discrimination in such proceedings. The regulations specifically define what is considered sexual harassment and harassment and require schools to dismiss complaints that—even if proven—do not meet the definition.
For college students accused of sexual misconduct, the new regulations protect their due process right to know what they have been accused of, to have a meaningful process where the accusation must be proven, and an opportunity to challenge the evidence and present their side of the story. These rights are wasted if they don’t get used—and when facing such a serious accusation, any student would be wise to exercise their right to an advisor and have an experienced attorney by their side.