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May 14, 2020

The Department of Education’s Title IX Regulations: Predicated on Fundamental Due Process Guarantees


Patricia Hamill and Lorie Dakessian

On May 7, 2021, the Department of Education announced new Title IX regulations that took a much-needed step forward to promote the fundamentals of campus disciplinary proceedings: fairness, reliability, and consistency. These are firmly rooted in the principle that Title IX protects access to education for complainants and respondents, both males and females, and that disciplinary proceedings must be fair for everyone.

Complainants are assured:

  • Every report of misconduct is taken seriously
  • They have the agency to decide whether to pursue a formal grievance process
  • They will be given prompt access to a wide range of supportive measures regardless of whether they file a formal complaint and without any proof of their allegations.
  • If they pursue a formal grievance process, both parties are entitled to procedural protections designed to ensure due process and fundamental fairness
  • If the respondent is found responsible, they receive an effective remedy and the respondent is subject to disciplinary sanctions.

Respondents are assured that they will not be subject to discipline unless found responsible after a fair process, which includes notice, an opportunity to respond, as well as impartial decisionmakers.

Background of Regulations

Recently, state and federal courts have increasingly held schools accountable for failure to provide just proceedings to respondents accused of sexual misconduct. In 2017, the Department of Education reaffirmed fundamental principled required for reliable proceedings. In September of the same year, the DOE rescinded previous guidance documents and issued updated interim guidance. The DOE then developed proposed regulations, which were published in November 2018.

Since then, there have been over 100,000 comments published. More lawsuits have been filed, and a slew of new court decisions have been issued. A number of court decisions champion the basic protections included in these regulations, while others defer to school administrators, accept the argument that adopting a presumption in favor of complainants does not support allegations of gender discrimination, and dismiss claims when they acknowledge a respondent had been railroaded. Now, the long-awaited regulations are in place.

Regulations and Fairness in Proceedings

The new regulations offer a bevy of procedural protections designed for the complainant and respondent to be treated equitably, laying the groundwork for timely, unbiased, and credible formal and informal resolutions. While passing regulations is vital, it is not enough; for proceedings to be genuinely fair, educational institutions must possess an unwavering commitment to just and consistent investigations and outcomes across the board.

A more comprehensive review and analysis of these Title IX regulations, including colleges’ and universities’ duty to uphold them, can be found here.