Under the Biden administration, the Office for Civil Rights of the Department of Education has proposed sweeping changes to the handling of campus sexual assault claims under the umbrella of Title IX sexual discrimination. Colleen Murphy of ALM/Law.com reports that observers say that the latest round of sweeping proposed changes to Title IX could put universities in the crosshairs of litigation by college and university students accused of sexual misconduct.
Patricia Hamill, partner and co-chair of the Title IX and Campus Discipline practice at Conrad O’Brien, expressed apprehension regarding the new regulations:
“I am deeply concerned that in the guise of giving universities ‘flexibility,’ the Department of Education is authorizing the roll back or revocation of due process and fairness rights for both parties: full access to evidence, and the right to a live hearing and direct, real-time cross-examination . . . . These are not the only, but are the most troubling, aspects of the proposed regulations to me.“
The Department of Education’s new proposal “essentially allows universities to go back to what they used to do and which has spawned an incredible amount of litigation—more than 400 lawsuits by accused students since 2013,” Hamill said.
“Regardless of changes to the proposed regulations, universities will still be required to implement fair and equitable processes,” said Hamill, adding that it is the responsibility of universities to provide a fair and equitable process to both parties, despite the proposed changes.
“So, while the proposed regulations are less prescriptive in many ways than the current regulations and allow universities the freedom to shape many aspects of their processes,” said Hamill, “universities are still at their peril if they do not provide adequate processes and procedures or do not implement those processes and procedures in a manner that is fair and equitable to both parties.”
The proposed Title IX changes now will enter a period of public comment for 60 days after being published in the Federal Register.