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Proposed Title IX Rules – What’s Better and What’s Worse

By Randy Geller

The Notice of Proposed Rulemaking (NPRM) is a mixed bag for colleges and universities. In some ways, the proposed regulations adhere more closely to Title IX itself, which is generally a good thing for institutions of higher education.  In other areas, the draft simply substitutes one set of problems for another.

What’s Better about the Proposed Regulations – Fidelity to Title IX

In several respects, the proposed regulations reflect greater fidelity to the 1972 Title IX statute than the “dear colleague” letters they would replace. That fidelity, a positive development for colleges and universities, is found in a number of areas.

Educational Program or Activity. One of the most vexing things about the Obama-era guidance was that post-secondary institutions could be liable for sexual misconduct that did not occur in one of their educational programs or activities. For example, if Student A sexually assaulted Student B at a privately-owned apartment off-campus at 2 am, the school had exposure but little if any practical means of prevention. Under the proposed rules, if the victim in such a circumstance seeks assistance, the school is not liable unless it fails to offer and implement supportive measures. It is noteworthy that the proposed rules do not prohibit a school from invoking its student conduct code on this set of facts, and many if not most institutions will do so.

Deliberate Indifference. Since 1998, a school has been liable for money damages in a private lawsuit under Title IX only if the school has been “deliberately indifferent” to sexual misconduct. However, the Office for Civil Rights has used a “preponderance of the evidence” standard. OCR’s proposal to adopt the Supreme Court rule has resulted in significant criticism, but this development is a net positive for post-secondary institutions.

Deliberate indifference means that a school will be liable if its response to sexual misconduct is clearly unreasonable in light of the known circumstances. As the Supreme Court has noted, Title IX’s express means of enforcement requires actual notice to school officials and an opportunity for voluntary compliance before OCR may seek to withdraw federal funding. The purpose is to avoid a counter-productive removal of education funding that would negatively affect the school’s students.

This approach makes sense, particularly for post-secondary institutions. Surely, colleges do not control their students. Although they often demonstrate otherwise, college students are legally adults, and student affairs personnel and faculty members are not their guardians. Unlike employees, students are not agents of a university. Deliberate indifference is indeed a high standard, but it is the correct standard under Federal law. States that have their own Title IX corollary are free to adopt a lower standard. Colleges can still be sued for negligence and breach of contract — and surely will be.

Informal Resolution.  Another vexing aspect of the Obama-era guidance was that it was nearly completely divorced from the underlying purpose of student conduct codes specifically and higher education generally. Fundamentally, student conduct codes at colleges are about education and behavior management, not meting out justice like a court system. Informal resolution of student conduct matters is the norm–and it is good practice. Sometimes, a student must be removed from campus, and the proposed regulations recognize that fact. But if removal from campus is not warranted, informal resolution is appropriate—if the school and both students agree.

What’s Worse about the Proposed Regulations -The Hearing Itself

One-Size-Fits-All. Like the Obama-era guidance, the proposed rules fail to account for the phenomenal diversity of post-secondary educational institutions.  The proposed one-size-fits-all grievance procedures are in many respects a travesty for all involved. Post-secondary institutions range from private career colleges to large public universities and from small religious colleges to sprawling commuter schools with no discernable campus. One size most assuredly does not fit all. The Obama-era guidance did not recognize this, and neither do the newly-proposed rules.

Live Hearings. It’s very difficult to conduct a live hearing. Ask a judge who has a book of rules and nearly unfettered power to apply them. Most administrative proceedings before state and local governments are conducted by highly trained hearing officers or administrative law judges employed by the government and also armed with detailed rules. Colleges and universities are not very good at this sort of thing, and they should not be expected to do it.

Beyond that, live hearings can be unnecessarily traumatic for the participants. Ask a litigant. Do we really expect two 18-year olds to successfully participate in a live hearing in front of an administrator, a faculty panel, or a group of peers in what may be the most consequential and traumatic circumstances of their young lives? College students may be adults, but they are not prepared for this indignity or complexity. Let colleges and students decide the procedures to be used.

Appointment of Counsel. The proposed rules require a college to allow students to be accompanied by an advisor of their choice during a grievance proceeding. That is all well and good. However, for those who can afford it, the advisor will be an attorney. While a school can limit the role of an advisor-attorney, any decent attorney will push the limits, especially where a lay person is attempting to run the hearing.  If a party does not have an advisor, the school must provide one to conduct cross-examination. Where will advisors with expertise in cross-examination come from? Will schools need to have attorneys on call? Will the attorneys be paid by the school? If the attorney is ineffective, will the school be liable? The role of advisors, especially attorney-advisors, is another area best left to each individual school and the evolving law of due process.

Cross-examination.   See above.  State law may require cross examination in some proceedings at some public institutions. But are we really proposing to introduce cross-examination into all private institutions? At what cost?

Since 1995, I have helped clients address a wide variety of challenging issues at the intersection of education, institutional management, public policy, and the law. With years of experience at two major universities and in private practice, I offer not only legal advice, but also practical advice to help clients manage problems and implement effective solutions. I would enjoy assisting your institution in managing its response to the newly proposed regulations and implementing those regulations when they become final.

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