Title IX Rules Changes Could Affect Off-Campus Conduct
The Biden administration’s proposed changes to the rules governing Title IX could have a major impact on how schools investigate allegations of sexual misconduct. In June 2022, the federal Department of Education (DOE) introduced proposed changes to the landmark legislation that prevents discrimination on the basis of sex at schools, colleges, and universities that receive federal funding.
This most recent set of modifications would expand Title IX coverage to misconduct that occurs in educational programs off-campus, including incidents that happen outside the United States. This reverses the changes to Title IX made under the Trump administration in 2020, which required schools to pursue investigations into misconduct that occurred on campus only.
In practice, this means that schools are required to respond to sex discrimination within their educational programs and activities, both on and off campus, when it occurs in settings under the school’s disciplinary authority. This could include off-campus housing or programs that are under the authority of the institution. It also extends to educational programs outside the U.S. – such as study-abroad programs in other counties. Because Title IX affects all educational institutions that are federally funded, these changes apply to elementary and high schools, as well as colleges and universities.
The proposed regulations also create a more expansive definition of what constitutes sexual harassment. Under the 2020 guidelines, conduct could rise to the level of a Title IX complaint if it were considered “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”
Now, the DOE has revised that definition, stating that sex-based harassment includes “sexual harassment; harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” The definition also includes previously covered actions such as “quid pro quo” harassment (“you do this for me, and I’ll do something for you”), sexual assault, intimate partner violence, and stalking.
Together, these changes could lead to a significant increase in Title IX cases, says Andrew T. Miltenberg, Managing Partner at Nesenoff & Miltenberg, LLP. “I think it’s going to lead to a tremendous flood of these cases, and schools exercising greater control of students’ private lives,” he explains. Notably, the proposed guidance also eliminates the requirements for schools to hold live hearings and allow for cross-examination during these hearings – two amendments that could lead to due process challenges.
Changing guidelines may leave schools scrambling
With three different sets of guidelines in three years, colleges and universities may struggle with implementing practices that are fair to students. And without clear guidelines for schools, Title IX policies may be unfair or unevenly implemented.
“We’re going back to a lot of the original frailties in the processes used at universities. And it’s become a much larger playing field,” notes Miltenberg.
The 2022 proposed guidelines are making their way through the regulatory process after a comment period. However, the version that ultimately takes effect – known as the “final rule” – may not be issued until 2023 and could contain significant updates or changes as the DOE takes feedback into account.
If a student is found guilty of sexual misconduct, it can have a major impact on their future and bar them from many different careers, says Miltenberg — “everything from law enforcement to military, medical school, law school, academia, and any career paths that would require a background check.”
Because these Title IX cases can have such long-lasting impacts on all the students involved, due process is critical. “There’s an old saying that justice isn’t a result, it’s a process,” says Miltenberg.
Additionally, because neither the current nor the proposed regulations specify a timeline in which cases should be investigated and resolved, students can bring forth allegations against a fellow student, staff member, or faculty member months or even years after an incident occurs. “Parents should understand that schools are exercising a tremendous amount of control over their children’s lives and futures,” Miltenberg states.
With changing guidance – and variations in Title IX policies across schools – it is critical to seek support from an experienced attorney. If you or your child has been accused of sexual misconduct, turn to the office of Nesenoff & Miltenberg, LLP today. We have garnered national recognition as the leading law firm for college, university, and private school students facing these claims, and many view us as a pioneer in campus disciplinary defense. Contact the office of Nesenoff & Miltenberg, LLP today for more information.
