What New Executive Order Bans Mean for Title IX Kangaroo Courts

Nov. 18, 2019 By Andrew Miltenberg

What New Executive Order Bans Mean for Title IX Kangaroo Courts

Two recent Executive Orders by President Trump will make it more difficult for federal agencies such as the Department of Education to engage in unilateral rulemaking by issuing “guidance” purporting to interpret laws.  Guidance is an agency’s statement of policy that is not subject to the publication and comment requirement for regulations required by the federal Administrative Procedures Act.

With respect to Title IX, the Obama Administration’s Department of Education Office for Civil Rights (“OCR”) issued a “Dear Colleague” guidance to colleges and universities in 2011 (“2011 Guidance”).   It lowered the burden of proof in a school disciplinary proceeding to a “preponderance of the evidence” and made other changes adverse to accused students.  As a result, many schools established policies and procedures favorable to the accuser and frequently denied accused students the right to due process and fundamental fairness in the conduct of investigatory and disciplinary processes.

The Trump Administration rescinded the Obama Administration’s 2011 OCR Guidance in September 2017.  The two new Executive Orders will make it more difficult for OCR to issue new guidance without first receiving and considering public comments and either publishing the guidance in the Federal Register or indexing and making it available to the public on its website. One order instructs federal agencies to “treat guidance documents as non-binding both in law and in practice,” include public input in formulating guidance, and make the documents “readily available to the public.”  

The Trump Administration OCR has also published proposed regulations for the conduct of Title IX proceedings on campus.  These proposed regulations would define sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” The Obama Administration defined harassment as simply any “unwelcome conduct of a sexual nature.”

The proposed regulations would also mandate the accused student has the right to cross-examine the complainant and supporting witnesses.  Colleges would also have the right to apply a higher “clear and convincing evidence” standard of proof and be able to use mediation to resolve complaints instead of being required to conduct a full disciplinary hearing.

The regulations would provide an element of certainty to how colleges must conduct sexual harassment complaints or activity on campus and preserve the rights of the accused student in doing so.  While Democrats in the House have introduced legislation attempting to prohibit the regulations from taking effect, the regulations are important to reverse years of colleges following the 2011 Guidance and implementing flawed procedures adverse to accused students.

If you or your child has received a complaint alleging sexual misconduct at college, we at Nesenoff & Miltenberg can help. Our attorneys are Title IX defense specialists and we have helped hundreds of accused students who have been treated unfairly by their schools, including the students in both the Purdue and Michigan State cases. We are parents too. Call us at 212-736-4500 or contact us as soon as a complaint is filed and we will be there aggressively protecting your rights and ensuring a fair process or establishing the deficiencies that will lead a court to reverse the school’s adverse findings. There is no fee for a confidential consultation.