Students facing Title IX disciplinary proceedings, as well as criminal investigations (and possible PFA hearings), as a result of alleged sexual misconduct in a college setting must navigate a complicated terrain of overlapping legal issues. Greater uniform protections in Title IX campus disciplinary processes arrived with the implementation of the Department of Education’s Title IX regulations in 2020, colleges have found ways permitted by those same regulations to limit the rights afforded to their students by shuttling matters into non-Title IX proceedings usually with fewer protections for accused students.
This already complicated terrain is likely to worsen, as the Department of Education’s recently proposed Title IX regulations, if enacted as written, give permission to universities to strip students of important procedural rights they have under the current regulations, including the right to a live hearing with direct cross examination. Understanding the constellation of legal challenges students face, as well as having a thorough understanding of a college’s Title IX and related policies and the current and forthcoming Title IX regulations, is critical to navigating this terrain.
Co-Chairs of the Title IX and Campus Discipline practice, Patricia Hamill and Lorie Dakessian, have authored an article published by PACDL which addresses the key considerations:
- Considerations regarding complainants’ parallel courses of action
- Considerations regarding college processes
- Considerations regarding the new proposed regulations – a roll back of rights
In order for attorneys to protect clients involved in Title IX disciplinary processes, insist on the right to a fair process, and to establish a record for possible later civil litigation against the college, attorneys must be well versed both in the current and evolving Title IX regulatory framework, as well as case law interpreting the regulations and contractual obligations of universities in conducting disciplinary processes.
While the 2020 Title IX regulations provided a good start for fairer processes for all parties involved in campus cases, several key protections the authors believe are essential for respondents to fully defend themselves are now in jeopardy as a result of the new proposed regulations, which we expect to take effect in 2023.