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Friday, Jan. 25th 2019

Title IX In Turmoil

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I have written extensively on this site about Title IX Sexual Misconduct and its impact on college and university students (mostly men). Beginning in September 2017, Betsy DeVos, the U.S. Secretary of Education, has argued for implementation of regulations which would enhance the rights of accused students to have more meaningful due process procedures to guard against false accusations of sexual misconduct.  Read More

Title IX was originally intended to provide for equality of opportunity between men and women in college sports and then morphed into a broader gender-based set of protections against discrimination which could deprive a student of his or her educational opportunities. It was intended to apply to serious harassment, sexual violence and required a finding that the complainant (the victim) had suffered a loss of his or her right to enjoy the benefits of their education at a college or university.

The new DeVos regulations for Title IX Sexual Misconduct were published in October 2018, and the public comment period has now expired as of January 30, 2019. The highlights of the proposed new regulations are:

  • Only hold schools accountable for Title IX Sexual Misconduct cases that take place on campus.   
  • Define sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.”    
  • Requires students to report sexual misconduct to “an official who has the authority to:    
    • Institute “corrective measures” rather than a trusted peer like a residential adviser, and
    • Would require colleges to hold live hearings where both sides have a chance to cross-examine testimony and would require survivors to speak with specific school officials.

There have been nearly 100,000 comments, many from people concerned that the “victims” will be “forced to relive their trauma.” Until now, an accused student has had no right to directly question his accuser or have an attorney do so. The hearing panel chair has had the discretion to ask, or not ask, suggested questions of the complainant. Critics of the new Title IX Sexual Misconduct regulations argue that cross-examination would complicate such cases and that survivors often experience memory lapses apart from the crucial moments of an assault.

Last week a bill was introduced in both houses of the Missouri legislature that would make Title IX Sexual Misconduct investigations at Missouri’s colleges and universities more like legal proceedings. The bills would guarantee all students the right to representation by an attorney in a Title IX case and allow students to request a review of adherence to due process rules by the State’s Administrative Hearing Commission. 

My opinion, having handled more than 25 Title IX Sexual Misconduct cases at six different universities, is that these federal and state changes to Title IX procedure are long overdue. If a government agency sought to take your land for a new highway, no one would argue that the Due Process Clause entitles you to a fair hearing about the value of your land and just compensation. However, we have been far too comfortable with university Title IX Sexual Misconduct coordinators acting to deprive students of their right to higher education at public universities without real due process. Read More

Calling a complainant the “victim” without submitting his or her account to the rigors of cross-examination is sexist in itself. It implies that women who file a Title IX Sexual Misconduct complaint somehow deserve a presumption of truthfulness and should not have to be held to real due process standards in determining the credibility of their testimony.

If you have been accused of a Title IX Sexual Misconduct violation, please contact me. 

CLIFFORD A. COHEN, STUDENT RIGHTS LAWYER         EMAIL: cac@ksmolaw.com          PHONE: 913 345-2555           WEBSITE

7015 College Blvd. #375
Overland Park, KS 66211

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