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Title IX

Federal judge strikes down major Trump-era rule change to Title IX regulations

By November 22, 2021September 25th, 2023No Comments

The political battleground of Title IX regulations has once again seen a change in the field. On July 28, a federal judge vacated a provision of Trump’s Title IX rule changes from 2020. The decision means that parties in Title IX grievance processes at postsecondary institutions no longer have to submit to cross-examination in order for their evidence to be heard.

In other words, if you are involved in a Title IX investigation at a college or university (as accused, accuser, or witness), you don’t have to agree to cross-examination at a live hearing in order to make your case.

For more details on this decision and what it means for college students, check out the commentary below from our team of student defense attorneys at DC Student Defense.

A brief history of Title IX

Title IX of the Education Amendments of 1972 protects students from discrimination on the basis of sex. Below is the official text of Title IX:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

Since the 1970s, courts have interpreted this protection against sex discrimination as a protection against sexual harassment or assault. The argument goes that a culture of harassment and a tendency for administrators to disbelieve those who come forward about their experiences create a hostile environment for many women, LGBTQ folks, and other survivors of sexual assault.

In 2020, the Trump administration rolled back a number of policy guidelines from the Obama era that encouraged schools to take Title IX accusations seriously. In their place, the Department of Education implemented a new set of rules, changing many of the requirements for how schools handle sexual assault accusations.

Here are some of the most important rule changes implemented in 2020:

  • Schools are only responsible for responding to sexual assault accusations that are filed officially through a Title IX coordinator or similar authority figure
  • Schools should begin the process with an “innocent until proven guilty” mentality
  • Schools are encouraged to adopt a “clear and convincing” standard of evidence — which is much higher than the previous standard, “preponderance of the evidence”
  • Schools are required to hold a live hearing with all parties involved
  • Schools may only consider evidence if the person providing this evidence submits to cross-examination at the hearing

Many have expected the Biden administration to alter some of these rule changes, but new rules have not been forthcoming.

The July 2021 court decision

In 2021, several individuals and organizations advocating against campus sexual assault challenged these 2020 rule changes in a federal court case in Massachussetts. On July 28, 2021, the court upheld most of the challenged provisions. However, it did strike down the rule requiring cross-examination at the hearings.

Under the 2020 rules, schools could only consider evidence in a Title IX investigation if the person providing that evidence showed up to the live hearing for cross-examination. Here’s the official text of that rule:

“If a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility….”

According to the new court decision, that rule no longer applies.

For example, decision-makers in a college Title IX investigation may consider any of the following evidence, regardless of whether the person providing it shows up for cross-examination:

  • Statements made by the accuser or accused
  • Statements made by witnesses
  • Emails or texts between the parties
  • Any statement made about the alleged sexual assault that satisfies the regulation’s relevance rules

What this means for college students

The cross-examination provision of Trump’s 2020 rules was intended to protect the due process rights of the accused.

However, it was criticized by those advocating an end to campus sexual assault for placing an undue burden on the survivor of the alleged assault. In order for any action to be taken regarding their assault, they would have to undergo questioning by untrained school administrators and re-live their trauma.

One important thing to understand is that the accused are not guaranteed the same due process rights in a Title IX investigation that they would be in a criminal trial. The federal district court in Massachusetts found that requiring cross-examination at a live hearing before any evidence could be considered was an “arbitrary and capricious” rule in the context of college disciplinary hearings.

If you are bringing Title IX charges against someone at a college or university, this ruling is good news for you, because it means your evidence can be considered without having to put you in the limelight at a live hearing.

However, if you are accused of a Title IX violation, this might be bad news for you, because it means you have one less opportunity to defend yourself at a hearing.

Whatever your situation, it’s crucial that you contact a student defense attorney to learn more about how this ruling affects your case.

Contact DC Student Defense

If you have been accused of sexual assault or harrassment and are worried that your university isn’t respecting your rights, DC Student Defense can help. Alternatively, if you’ve filed a Title IX complaint and are worried that your university is not taking your claim seriously, we are happy to discuss your situation with you, as well. Contact us today to schedule a consultation

Shan Wu

Author Shan Wu

Shan’s professional and personal background gives him a unique understanding of academic institutions and the criminal justice system. A former federal prosecutor in Washington, D.C., he is at home in D.C. Courts and very familiar with all of the Washington, D.C. law enforcement agencies, especially the Metropolitan Police Department. His parents were university professors so he grew up in a university environment. He understands the mindset of academic institutions. As a prosecutor, he supervised in the misdemeanor crime section. This is the section of the Washington, D.C. prosecutor’s office that handles most college student cases. His understanding of charging decisions and how judges view these cases is invaluable to his student clients and their families. Shan served as a federal prosecutor in the United States Attorney’s Office for the District of Columbia for over ten years. During his tenure there, now Attorney General Eric H. Holder, Jr. appointed him to supervisory positions in the Misdemeanor Trial Section and also in a police corruption task force. His outstanding legal work in the government was recognized through numerous Special Achievement Awards from the Justice Department as well as awards conveyed by law enforcement agencies and community groups. From 1999-2000, Shan served as Counsel to Attorney General Janet Reno, advising her on criminal and civil investigations, E-Gov, E-Commerce (electronic signatures, internet gambling, internet telephony, privacy & public access issues in electronic court filings), congressional oversight, and legislative review. His responsibilities included serving as liaison to the FBI, DEA, Criminal Division, Executive Office of United States Attorneys, National Institute of Justice, and White House Counsel’s Office. Shan serves on the D.C. Bar Association’s Hearing Committee of the Board on Professional Responsibility and is a past president of the Asian Pacific American Bar Association for the Greater Washington, D.C. area. He is a 1988 graduate of Georgetown University Law Center, where he graduated Order of the Barristers, edited two law reviews, and was Co-Director of the Moot Court Program. He holds a B.A. in English Literature from Vassar College as well as a Master’s Degree in Creative Writing from Sarah Lawrence College. Following law school, he clerked for the late Hon. Jerry Buchmeyer, U.S. District Court for the Northern District of Texas, and the late Eugene Wright, U.S. Court of Appeals for the Ninth Circuit. He is admitted to practice law in the District of Columbia and Connecticut.

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