More on the proposed Title IX regulations…

The proposed new Title IX regulations include complex, formal procedures for schools to investigate allegations of sexual harassment.  Here are the highlights in Section 34 CFR 106.45 of the proposed regulations.

EQUITY.   A consistent theme in the regulations is equity. Treat the complaining party and the complained-of party the same.  Failure to do so can be considered a Title IX violation.

BURDEN OF PROOF.  The proposed regulations put the burden of proof and the burden of gathering evidence on neither party.  Instead, it’s the school’s responsibility to gather enough evidence and have a sufficient foundation for its decision.

PRESUMPTION OF INNOCENCE.  The school’s procedures would be required to “Include a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.”  This is the familiar notion of “innocent until proven guilty.” That standard is required by law only in criminal cases, but here, proposed Title IX regs incorporate it.

STANDARDS FOR YOUR PROCEDURES.  For the first time, the DOE proposes specific procedures that all Title IX recipients must have in place.  To say that they are complicated is an understatement.  The procedures require a process that involves 1) a formal complaint; 2) written notice of the allegations to the respondent, prior to any initial interview; 3) equal opportunity for both parties to present witnesses and evidence, to examine the evidence, and to be accompanied by an advisor of their choice.

INVESTIGATIVE REPORT.  The school would be required to produce a written “investigative report” prior to any hearing.  But you can’t write the report until you share the evidence with both parties and give them a chance to respond.  Then you can write a report, which must be provided to the parties prior to a hearing.

TO SUMMARIZE.  So the process involves 1) notice; 2) gathering of evidence; 3) sharing of evidence; 4) writing a report; and only after all of that 5) a hearing.  The hearing would then be followed by a final written determination, including any sanctions imposed on the respondent and any remedies offered to the complaining party.  The proposed regulations allow for the hearing at the K-12 level to be less formal than a hearing in higher education.

If these regulations go into effect we are going to have to learn some new vocabulary. The regs draw a distinction between 1) the Title IX Coordinator; 2) investigators; and 3) decision makers (DM).  The DM cannot be the Coordinator or the investigator.  The investigator investigates and writes the report for consideration by the DM.  It’s complicated. It’s going to be expensive and difficult to implement.


Tomorrow: Some Friday thoughts about these proposed regulations.