On May 6th, 2020, Secretary of Education and Michigan native, Betsy Devos, issued new rules under Title IX of the United State’s Federal Laws. Title IX is the section of the laws that prescribe more generally any form of discrimination on the basis of sex for any program receive federal funding. The rules and procedures set out under this section of Title IX also apply to domestic violence, sexual assault, stalking, and dating violence. The new rules govern when and under what circumstances colleges and universities may deal with alleged instances of sexual misconduct among students.
When is Sexual Activity Among Students Misconduct?
Devos’s new rules define sexual harassment as unwelcome conduct that is so severe, pervasive, and objectively offensive. This new definition is narrower than that under the Obama administration’s rules. The previous rule required conduct to be severe or pervasive as opposed to severe and pervasive. That one-word difference can be crucial. For example, one instance of sexual harassment may not be enough to trigger a school’s requirement to investigate the claim. Victim’s advocate groups are not happy with this change and believe that it effectively denies some victims access to the school’s programs.
Schools Now More Limited in Cases They Can Handle
The biggest change in the new rules relates to jurisdiction. The term “jurisdiction” in law refers to rules that apply in determining when a tribunal is the appropriate place for a dispute to be heard. The previous rules encouraged schools to investigate off-campus claims. Under the new rule, a school has jurisdiction only if the incident occurred on campus, on property owned by the school, or in a building owned or controlled by a student organization officially recognized by the school (for example, a fraternity house). The school also has jurisdiction, and a duty to investigate claims, if the incident occurred at a location or event over which the school exercises substantial control. Think, field trip or academic conference. The school does not have jurisdiction over study abroad situations, though. Under the old rules, a school would have jurisdiction even when the alleged sexual misconduct occurred off-campus apartments. The new rules do not extend university jurisdiction that far.
Sexual Misconduct Cases Formalized with More Protections for the Accused
The new rules will make the procedure more like a courtroom setting and provide higher levels of due process to the accused. If a school is notified of a sexual misconduct allegation through the proper channel, the school must have trained personnel review the evidence (like a prosecutor). The school is also must have a hearing officer present (like a judge) at a hearing. In these hearings, unlike many student misconduct hearings, the accused may have an attorney present. The due process requirement in the new rules also allows for cross-examination of witnesses. The previous rule did not require schools to allow cross-examination. This is no small change; Justice Scalia, in the Crawford v. Washington case, referred to cross-examination as the single most important means to test the truthfulness of a witnesses statement. Cross-examination is therefore, according to Scalia, as the “crucible” within which determinations of truth are formed.
Burden of Proof Also Increased
The new rules allow the school to set the standard for whether the accused is at fault for the misconduct. Schools are now able to elect between a “preponderance of evidence” standard or a “clear and convincing evidence.” The previous rules recommended a standard of preponderance of evidence. This is also a significant change because a clear and convincing standard of proof is much higher than preponderance of evidence.
Preponderance of evidence is the standard of proof that must be met for most civil tort claims, such as breach of contract of professional malpractice. To prevail on a preponderance of evidence standard, the party bringing the claim need only show that there is a greater than 50% chance that claim is true.
Clear and convincing evidence is the second highest burden of proof, second only to the beyond a reasonable doubt standard applicable in a criminal case. To prevail on a clear and convincing standard, the personal claiming that the sexual misconduct occurred must leave the jury with a definite and firm conviction that the facts alleged are true. This is a very high standard of proof, and is appliable, for example, in a child neglect case where the State attempts to remove a child from a family. When schools elect to apply this higher clear and convincing standard of proof it will be much more difficult for a victim of sexual misconduct to prove that it occurred.
How Are Sexual Misconduct Cases Handled Differently than Other Student Claims?
Title IX student misconduct hearings will probably be somewhat different than standard student misconduct hearings at universities. The rules by which standard student misconduct allegations are reviewed by universities are set out in the university’s student handbook. In most cases, universities do not allow lawyers in standard misconduct hearings. That means that cross-examination generally would not take place. Cross-examination is generally seen as an important truth-finding practice. Therefore, this aspect of the new rules is seen as better for the accused.
As you can see, many of these rules include legal standards with which experienced attorneys will be familiar. If you are accused of misconduct by someone at your college or university, especially if that misconduct falls under the new Title IX rules, it is crucial you consult with an attorney experienced in student misconduct cases because these attorneys will be familiar with the new rules and the standard hearing procedures at schools.
The attorneys at the Barone Defense Firm have been helping students with misconduct allegations for over 30 years. From alleged plagiarism, to the use of alcohol and drugs on campus, to sexual misconduct, our attorneys have helped students avoid penalties like expulsion and criminal penalties. If you need help with a student misconduct case, including if it involves possible criminal charges, do not hesitate to contact our attorneys today.