Title IX / College Discipline Practice - Warshaw Burstein LLP | Kimberly C. Lau Statement on Final Title IX Rule
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Kimberly C. Lau Statement on Final Title IX Rule

Instead of bringing clarity and certainty to students regarding the Title IX grievance process, the Final Rule grants schools new, unfettered discretion to decide for themselves how they will handle their formal and informal Title IX proceedings and whether a live hearing will be allowed or not. Additionally, the Final Rule represents a setback for due process rights to those being accused of sexual misconduct. Specifically, the Final Rule removes the live hearing requirement that was instituted in the 2020 Regulations. Schools are now allowed to appoint one individual, including the Title IX coordinator, as the sole investigator and decisionmaker in formal Title IX proceedings under a “single investigator model.” Under the single investigator model, this individual would assume the roles of judge, jury, and executioner. Furthermore, the removal of the live hearing requirement erodes the credibility-determination process because cross-examination is less effective without a live hearing.

While the Final Rule represents a major setback for due process rights, we agree with the Final Rule’s application of Title IX based on whether a complainant was attempting to participate in a recipient’s education program or activity at the time the misconduct occurred. The 2020 Regulations limited who could file a complaint to individuals who were participating in or attempting to participate in an education program or activity at the time they filed their complaint. This had the effect of denying redress to individuals who were temporarily visiting campus when they were harassed, individuals who graduated shortly after they were subjected to sexual harassment, or individuals who found the harassment to be so severe that they left the institution and had no intention of ever returning. The 2020 Regulations also excluded most off-campus misconduct from Title IX’s jurisdiction, including incidents that occurred in study abroad programs. This led to the creation of parallel disciplinary procedures designed to fill the void left by Title IX. However, these parallel procedures lacked the due process protections afforded by Title IX. The Final Rule’s interpretation is better suited to achieving Title IX’s purpose of ensuring that no person is denied equal access to an education program or activity on the basis of sex. The Final Rule’s expanded application will fill the holes left by the 2020 Regulation, serve as a stronger deterrent, and hold schools accountable if they fail to address these forms of sexual harassment.