Changes to Title IX Take Effect August 14, 2020

August 13, 2020

What Should a Student Do if They Receive a Notice of Investigation for Sexual Assault or Sexual Harassment on a College Campus

They need to contact experienced counsel.  Title IX is not an easy process for anyone to navigate, particularly when it could affect their academic status.  New regulations issued in the spring of 2020 changed a student’s rights with respect to these investigations, including their right to a hearing and to cross-examine witnesses.  It is imperative that they contact a lawyer to discuss their options and possible course of action to protect their rights and status as a student.

What is Title IX?

Title IX protects people from discrimination based on sex in education programs or activities that receive Federal financial assistance. This federal statute is the vehicle used by universities and colleges to investigate and potentially discipline students, employees, and third parties for allegations related to sexual assault or sexual harassment on campus or sometimes even off campus.

Title IX states that:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

The interpretation of Title IX and its companion regulations have changed over time and from presidential administration to administration.  However, some of the most marked changes in recent history take effect August 14, 2020. College campuses will be implementing significant revisions to their Title IX policies and procedures.  The following are some of the most significant changes:

  • requiring colleges to provide live hearings where evidence is presented
  • allowing students’ advisers to cross-examine parties and witnesses involved
  • institutions must presume that those accused of sexual misconduct are innocent prior to the investigative and decision-making process
  • Title IX officials at colleges must use either a preponderance of the evidence or “clear and convincing” standard, which sets a higher burden of proof.
  • the regulations also explicitly define the scope of colleges’ responsibility to respond to complaints of sexual misconduct

Prior to the new regulations, the law did not mandate that universities and colleges offer the accused a live hearing, and very few of these educational institutions permitted the person accused of wrongdoing to cross-examine the other parties and witnesses. This change, along with the presumption of innocence and higher burden of proof, provide a process and opportunity for an accused person to challenge the veracity of the allegations prior to a decision being made about the accused’s academic status.

If the Accused is a Student at a University, How Does this Affect Them?

If a student is accused of sexual assault or sexual harassment, they could be immediately removed from campus, and suspended and/or expelled from your college if they are found to have violated their school’s Title IX policy.  Lesser punishments could also be imposed.

If the Student is Not Charged with a Crime, How Can the University or College Take Action Against Them?

Title IX does not require that the person accused of sexual harassment or sexual assault also face a criminal charge before commencing or concluding an investigation.  The investigative and disciplinary process is not a court of law.  Therefore, the university is not required to consider whether a criminal charge will be brought in a court of law before taking action to potentially remove them from campus.

This area of law is unique, time sensitive, and challenging. Attorney Erika Bierma routinely handles these matters at campuses around the Midwest. If you or a loved one needs assistance in navigating a sexual harassment or assault allegation, please contact Ms. Bierma for a free consultation.