There’s a new president. What does that mean for students accused of sexual assault?

As the Biden administration enacts new policies and reviews existing regulations, many watch with great interest. At colleges and universities, an important arena of potential change is federal enforcement of Title IX, legislation that governs the role of academic institutions in addressing sexual assault. Under former President Donald J. Trump, Washington altered the rules to expand the rights of students facing accusations of assault. What can students and parents anticipate in the coming months?

Intended to address gender inequity in athletic programs, Title IX of the Education Amendments of 1972 prohibits sex-based discrimination against students and employees by academic institutions receiving federal funding. In 2011, the Obama administration significantly expandedTitle IX enforcement with what became known as the “Dear Colleague” letter, a document which directed colleges and universities to conduct disciplinary proceedings in sexual assault cases using a lower threshold of evidence than criminal courts.

While heralded by many families and educators, the “Dear Colleague” letter raised numerous concerns among lawyers about the rights of accused students. Trump pledged to address these concerns and others related to campus sexual assault, and former Education Secretary Betsy DeVos rescinded the letter in 2017. New guidance followed in May of 2020, strengthening the rights of both victims and the accused in college disciplinary procedures.

Today, students accused of sexual misconduct must receive a written notice of the complaint and have the right to hearings overseen by multiple individuals. The person charged with investigating a complaint can’t also levy a judgment, and the accused has the right to an advisor and to cross-examine witnesses. Schools are further tasked with choosing a consistent standard of evidence and may opt for what attorneys call “clear and convincing evidence,”a higher standard than previously required.

For Andrew T. Miltenberg, a New York attorney considered among the nation’s leaders in Title IX defense, the revised regulations issued under Trump and DeVos challenged the assumption that “you’re either against men or victims’ rights.” Instead, he says, “you can do both. People have lost sight of that.”

Anticipating changes in a chaotic landscape

Despite legal codification –something the Obama-era rules lacked –many schools have been reluctant to honor the Trump-era changes to Title IX enforcement, even after they took formal effect in August 2020.

“The previous administration made some very important changes that unfortunately were seen as making it harder for victims to come forward and easier for the accused to fight allegations,” Miltenberg notes.

This perception is in part due to the use of a victim-centric approach to investigation, which privileges the claims of the accuser with a low standard of evidence. With the right to cross-examination and legal representation, those accused of sexual misconduct may challenge inconsistent, unclear, or false testimony and ensure their rights are protected. Yet rather than seeking balance between the rights of victims and the accused, many schools continue to disregard new rules in anticipation of an eventual rollback under Trump’s successor.

“There is no room for sexual harassment or assault on any campus,” Miltenberg says. “That doesn’t mean the accused shouldn’t have rights to a fair, transparent, and open process with an advisor and an independent, bias-free investigation.”

Finding a balance for survivors and the accused

A lack of uniformity and clear policies have long plagued students accused of sexual misconduct. Along with shifting federal regulations and institutional reluctance to support due process, campus proceedings simply lack the clarity of criminal and civil trials. This leaves little in terms of concrete guidance or clear expectations. Each institution maintains its own, often inconsistent, policies, and the stakes are extremely high. Accusations and judgments often bring rescinded scholarships, revoked degrees, and lost career opportunities.

“I think everyone has to be careful,” Miltenberg advises. “There will be an uptick in allegations, and universities are unfortunately going back to not conducting themselves in an appropriate manner.”

If you or your child has been accused of campus sexual harassment or assault, seek support immediately. Contact Andrew T. Miltenberg to learn more about the rights of the accused and how to protect them amid the complexities of campus sexual misconduct proceedings.