An Analysis of Title IX Regulations by a Title IX Attorney

On August 14, 2020, the Department of Education’s revised Title IX regulation, “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance,” took effect consisting of 27 due process provisions. All 27 major provisions of the 2020 regulation were affirmed by and/or consistent with at least one judicial decision. SAVE reviewed and analyzed 175 of those judicial decisions with outcomes favorable to accused students, suggesting that courts have become increasingly skeptical of university disciplinary procedures.  

Although courts seem to be taking off the rose-colored glasses, there are essential provisions covered in the 2020 regulations that could be altered in the coming months threatening the rights of accused students across the country. A few provisions in the current regulations that were affirmed by judicial decisions are discussed below, and recommendations are presented for the revision of OCR’s regulations.  

1. Equitable Due Process Procedures 

 Students attending public institutions are entitled to constitutional due process protections prior to a student being removed from educational opportunities. These due process protections, as articulated by two circuit courts and 16 trial courts, include, but are not limited to, the right to a live hearing and some form of cross-examination. Thus, Judges view constitutionally based due process protections as necessary to equitable grievance procedures for campus sexual misconduct proceedings in public schools. In Doe v. Brandeis University, 177 F. Supp. 3d 561 (D. Mass. March 31, 2016), the judge ruled that the private university needed to follow the college contractual obligations process in order to achieve “basic fairness” in the disciplinary process: 

 “Brandeis appears to have substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process. And it is not enough simply to say that such changes are appropriate because victims of sexual assault have not always achieved justice in the past. Whether someone is a “victim” is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning. Each case must be decided on its own merits, according to its own facts. If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision. Put simply, a fair determination of the facts requires a fair process, not tilted to favor a particular outcome, and a fair and neutral fact-finder, not predisposed to reach a particular conclusion.”  

Thus, In the private university setting, students also are entitled to equitable and unbiased resolution of sexual misconduct complaints. To effectuate this principle, courts are increasingly willing to hold private universities to the same standards as public universities under statutory, contractual, or common law “fairness” theories. 

 Courts have imposed several requirements (e.g., live hearings, cross examination) that cannot be contravened. In order to protect students and to give universities clear and consistent direction on what is required in this context, SAVE recommends that OCR should preserve the 2020 Regulations’ protection of due process generally and specifically as they protect students’ right to a live hearing and cross-examination. 

1. Institutional Sex Bias 

 Relying on Title IX statutory law, eight appellate decisions and 36 trial court decisions affirmed the necessity of avoiding sex bias in campus adjudications. In general, the judicial decisions recognized that colleges failed to observe the most fundamental notions of fairness, hinting that sex bias was the motivating factor on the college’s part.  Additionally, in Doe v. University of Mississippi and Doe v. University of Oregon, constitutional due process grounds were also cited as sex bias violative of Title IX could take the form of wrongful discipline or disparate treatment of male students as compared to female students, which brings constitutional due process grounds into play.  

SAVE recommends that OCR should retain the existing procedural protections afforded in the 2020 Regulation in order to avoid sex bias.  

1. Formal Complaint  

 As confirmed by five trial court decisions, the regulatory provisions at Section 160.30 that impliedly requires that a school must first receive a complaint before initiating the grievance process is essential for upholding students’ statutory and common law rights because they indicate when Title IX grievance procedures become lawfully required or permitted. However, Neal v. Colorado State Univ., demonstrated that when universities take action against a respondent without first receiving a complaint from the Complainant, such actions can violate Title IX. Thus, a revised regulation should further state explicitly that a complainant must make a formal complaint before discipline is imposed and that complaints made by students on behalf of other students will not be considered. 

1. Impartial Investigations  

 In a recent guidance regarding Impartial Investigations, the Office for Civil Rights stated, “The school must conduct an adequate, reliable, and impartial investigation that provides the parties with an equal opportunity to present witnesses and other evidence,” (Office for Civil Rights Question (May 13, 2021). Questions and Answers on Civil Rights and School Reopening in the COVID-19 Environment. Question 26. https://www2.ed.gov/about/offices/list/ocr/docs/qareopening-202105.pdf). Seven appellate and 43 trial court decisions have articulated deficiencies in the conduct of impartial investigations, with the legal basis for most of the decisions being a violation of Title IX. 

 The revised Title IX regulation needs to retain and strengthen the existing regulatory requirements for impartial investigations. Many universities utilize guilt-presuming investigative methods known as “trauma-informed,” “victim-centered,” or “Start by Believing.”  The use of such approaches needs to be discouraged, especially when one considers cases such as Doe v. University of Texas Health Science Center at Houston, no. 4:21-cv-01439, at *19 (S.D. Tex. Dec. 13, 2021). The trial court Judge denied the University’s motion to dismiss because Doe plausibly alleged a Title IX erroneous outcome claim against the university and a due process claim against the individual defendants: “Doe alleges that committee members joked and gossiped about his ‘problems with women’ and failed to protect his confidentiality throughout the disciplinary process.” 

1. Evidence Evaluation  

Eight appellate courts and 28 trial courts have strongly criticized and ruled against universities that refuse to either gather or consider “all pertinent evidence.” Failing to gather or consider relevant evidence raises an inference of sex discrimination in violation of Title IX. In Doe v. Purdue University, 928 F.3d 652, 664, 669 (7th Cir. June 28, 2019), the decision held that Doe had a constitutionally protected liberty interest in his pursuit of a Navy career, “But their failure to even question Jane or John Doe’s roommate to probe whether this evidence was reasonable to disbelieve Jane was fundamentally unfair to John.” 

 The revised regulation should keep the language as written. Still, it should further require recipient schools to gather all pertinent evidence that is practically accessible to help eliminate sex discrimination. This addition could have helped John Doe in Doe v. Purdue University, 928 F.3d 652, 664, 669 (7th Cir. June 28, 2019), in which the court held that Doe had a constitutionally protected liberty interest in his pursuit of a Navy career, “But their failure to even question Jane or John Doe’s roommate to probe whether this evidence was reasonable to disbelieve Jane was fundamentally unfair to John.” Thus, the court held that refusing to gather testimonial evidence, among other things, is sufficient to raise an inference of sex discrimination.