Dillon PLLC's Guide to the 2024 Title IX Regulations

On April 18, 2024, the Biden Administration’s Education Department released the final version of its new Title IX regulations. For anyone who cares about due process in these proceedings, the regulations are, predictably, a major disappointment. While the new regulations are not a complete return to the pre-2020 Title IX universe, they do eliminate the most important due process guarantees in the earlier regulations—namely, the right to adequate notice, the right to a live hearing, and the right to cross-examination. 

The new regulations go into effect on August 1, 2024. The 2020 allegations will cover any conduct that took place before August 1, 2024, even if a complaint is not filed until after August 1. The 2024 regulations will govern the adjudication of any conduct occurring on or after August 1, 2024.

Below is Dillon PLLC’s guide to them, in the order that they appear in the regulations.

1. Training materials: No longer on the website, and now you have to ask for them (Section 106.8(f)(3))

This may be one of the least necessary changes in the new regulations. Before 2020, the materials that schools used to train everyone in the Title IX process were secret. And they were often secret for a reason—because they were incredibly biased against respondents. The first and last word on this is Emily Yoffe’s seminal Atlantic article from 2017, which brought attention to this terrible practice.  

And the article got results, because the 2020 regulations required not only the universities make their training materials public, but that they actually put them on their websites. (Sunlight being the best disinfectant and all of that.) The 2024 regulations no longer require schools to post the training materials on their websites. Now, they still have to give them to you, but you have to request them.  

You should always request them, because there’s no telling what will be in them—and inevitably, the fact that they no longer have to be on the website is going to embolden some schools to engage in training shenanigans.  

This is one of the aspects of the regulations that will wind up hurting disadvantaged students the most. Students who can afford lawyers are going to know that you have to request the training materials. Students who can’t afford lawyers probably won’t even know to ask. Why the Education Department thought this was a necessary change, given how unbelievably easy it is to put materials up on a website, is beyond us.

2. Universal jurisdiction (Section 106.11)

One of the biggest changes in the new regulations is that schools are back to claiming universal jurisdiction over Title IX matters. So wherever you go, there you are—and so is your school.

Under the 2020 regulations, if an alleged violation occurred out of the country or not as part of a school program or activity—say, two students hooked up while interning for the same investment bank in New York—then the school lacked jurisdiction over the encounter. And that makes sense. Colleges are not supposed to be the Interpol of sex. They’re supposed to protect the educational environments of their students; asking them to police everything that happens anywhere in the world with one of their students is both an unfair imposition of their resources and a rather inflated view of their role in the world.

One of the biggest changes in the new regulations is that schools are back to claiming universal jurisdiction over Title IX matters. So wherever you go, there you are—and so is your school.

The new regulations return us to a world of universal jurisdiction. Now, no matter where an alleged violation happens, a school is obligated to take action to remedy it. So if the aforementioned would-be bankers get drunk and hook up with each other, and one of them wakes up the next morning thinking they were too drunk to consent, that person can take their concern up with not only their mutual employer, but also with the respondent’s college—even if they don’t go to the same college.  

This is precisely as dumb as it sounds, and an inexplicable departure from the 2020 regulations.  

3. You can file a complaint against someone even if you’re no longer in school (Sections 106.2, 106.45(a)(2))

Relatedly, the 2024 regulations remove the common-sense requirement that if you want to file a complaint against someone for interfering with your education, you still have to be partaking of said education. No longer.  

Under the new regulations, a complainant can leave school entirely, with no intention to ever return, and still file a complaint against a respondent. Revenge complaint, anyone? The whole point of Title IX is to give both men and women an equal opportunity to education. It’s not a criminal statute, intended to punish alleged perpetrators regardless of when or where the conduct is alleged to have occurred.  

If a complainant is no longer at the college, then there is nothing to remedy—she’s voluntarily removed herself from the college’s ability to affect her educational environment. So the fact that a university would now be forced to take up her complaint against her ex-boyfriend, despite the university’s total inability to remedy whatever bad thing happened to the claimant, defies common sense.  

Under the new regulations, a complainant can leave school entirely, with no intention to ever return, and still file a complaint against a respondent. Revenge complaint, anyone?

The new regulations no longer give respondents the right to know what they’re actually charged with doing before they’re interviewed. 

True story. And she used to be a prosecutor! 

That changed with the 2020 regulations, which sensibly required schools to give respondents “sufficient details known at the time and with sufficient time to prepare a response before any interview,” including the “conduct allegedly constituting the sexual harassment.”  

That’s gone now. In its place is only this: “[A] postsecondary institution must provide written notice to the parties whose identities are known with sufficient time for the parties to prepare a response before any initial interview.”

But notice of what? The regulations don’t say.  

No more “sufficient details.” No more being required to tell someone what they’re actually alleged to have done. Expect to see Notices of Allegations that simply list a date and some charges, such as: “It is alleged that, on April 19, 2024, you engaged in Sexual Harassment—Non-Consensual Sexual Contact with Sally Smith. Please provide your response by next Tuesday.”

What kind of sexual contact? Intercourse? Something else? Was part of the interaction consensual, and part of it nonconsensual? What’s the basis for the alleged lack of consent—incapacitation, or the failure to obtain affirmative consent? You won’t know until you walk in for your interview, and maybe even until you see the investigation report.

It’s going to be investigation by ambush. We just hope public schools will remember that they still have to follow the Due Process Clause, which will require a heck of a lot more notice than what that (private school) Associate GC once gave me.

9. The school has the burden to gather evidence (Section 106.45(f)(1))

The new regulations retained the 2020 regulations’ instruction that it is the school’s responsibility, and not that of the parties, to gather all relevant evidence in the case. As a practical matter, that means if you are a party who thinks the investigator should interview a certain witness or ask for certain evidence—such as contemporaneous text messages or photographs—you should make that request to the investigator and remind them of this provision if they refuse to gather the evidence.  

10. How questioning will work when there’s no live hearing (Section 106.45(f)(1)(i))

The new regulations outline how questioning is supposed to work when there’s no live hearing—a crucial protection that, as we will discuss more below, is about to go the way of the dodo now that it’s no longer mandatory. They say that the process must:

(A) Allow the investigator or decisionmaker to ask such questions during individual meetings with a party or witness; 

(B) Allow each party to propose such questions that the party wants asked of any party or witness and have those questions asked by the investigator or decisionmaker during one or more individual meetings, including follow-up meetings, with a party or witness, subject to the requirements in paragraph (f)(3) of this section; and 

(C) Provide each party with an audio or audiovisual recording or transcript with enough time for the party to have a reasonable opportunity to propose follow-up questions.  

Part A is obvious and no change at all; investigators and decision makers have always asked questions of the parties and witnesses.  

Part B allows the parties to propose questions for the investigator or decision maker to ask—but it doesn’t require the investigator or the decision maker to actually ask them! So it will now be more important than ever to ensure that those people are impartial.  

Part C surprised us—it requires schools to give the parties either a recording or a transcript of the interviews in enough time to provide follow-up questions. That’s letting more sunlight into the single investigator model than I would have expected from this Education Department, and it’s good to see.  

But again, just because you propose follow-up questions doesn’t mean the investigator has to ask them.

Some lawyers in this area recommend that you should come up with hundreds of questions just so you can later complain when not all of them were asked. We think that’s the wrong approach. Instead, we think you should ask common-sense, targeted questions that any judge would look at later and agree should have been asked. (Think sniper rifle, not shotgun.)  

Finally, one practical note: if a school does give you a recording (which is unwieldy) consider using an online transcription service like Rev.com to make a quick transcript. They have two options, one done by real people, and one done with artificial intelligence that’s much cheaper but pretty accurate, and probably accurate enough for most people if you’re a budget.

11. You now have to ask to see the evidence against you (Section 106.45(f)(4))

Under the new regulations, a school can either give the parties all of the relevant evidence it collected (the “evidence option”) or give them a draft investigation report that “accurately summarizes” this evidence (the “investigative report option”).

Raise your hand if you would trust a school to decide what constitutes an “accurate summary” without seeing the evidence for yourself.

No takers? Huh.

And here’s the really bad part that’s going to hurt poor people the most: even if a school goes with the “investigative report option,” you can still see the evidence—but you have to request it. See Section 106.45(f)4). You know who’s always going to request it? People who can afford lawyers. You know who’s not? People who can’t afford lawyers and may miss this tiny little detail among the pages and pages and pages of rules the school will dump on them at the outset of a case.

Who had “Biden Administration propounds dumb new rule that will mostly hurt poor people” on their bingo cards? I sure didn’t.

Under the new regulations, a school can either give the parties all of the relevant evidence it collected (the “evidence option”) or give them a draft investigation report that “accurately summarizes” this evidence (the “investigative report option”).

How you set defaults matters. And this one could wind up needlessly hurting a lot of people that you’d think the Biden Administration would want to protect. 

12. The right to an advisor, who can be an attorney (Section 106.46(e)(2))

The 2024 regulations also retained the requirement in the 2020 regulations that students are entitled to an advisor of their choice, and that that advisor can be an attorney. Given how difficult it is to navigate these cases without an attorney, that is a big win for both sides, not just respondents.

13. The elimination of the 10-day minimum response time (Section 106.46(e)(6))

This is one of the worst changes in the new regulations and the one most likely to be abused by nefarious Title IX coordinators.  

Under the 2020 regulations, schools were required to give the parties at least 10 days to review both the draft investigation reports/initial evidence and the final investigation report. Given that the evidence in your average Title IX case can easily run into the hundreds of pages, giving the parties at least 10 days was entirely appropriate.  

That requirement is gone now. In its place is the almost infinitely malleable word “reasonable.”  

The new regulations state that a school “must provide the parties with a reasonable opportunity to review and respond to the evidence or the investigation report….” Some people might think that three days is reasonable. It is easy to see a biased Title IX coordinator, who knows that these hearings are much harder to prepare for on the respondent’s side than the complainant’s side, giving the parties only 3-5 days to review the evidence. The elimination of the 10-day requirement was entirely unnecessary and does not bode well.

And it gets still worse. The same section of the regulations says that if a school decides to provide a live hearing, it doesn’t even have to let you see the evidence until the hearing itself.  

Let us say that again. If a school provides live hearings, you might not even get to see the evidence against you until you show up at the hearing. Here’s the relevant text: 

If a postsecondary institution conducts a live hearing as part of its grievance procedures, it must provide this opportunity to review the evidence in advance of the live hearing; it is at the postsecondary institution’s discretion whether to provide this opportunity to respond prior to the live hearing, during the live hearing, or both prior to and during the live hearing.

This is trial by ambush, it is unconscionable, and it is going to hurt respondents far more than it will hurt complainants.  

The same section of the regulations says that if a school decides to provide a live hearing, it doesn’t even have to let you see the evidence until the hearing itself. 

Students at public schools will likely not face this concern, however. It is difficult to believe that any public school would be dumb enough to take advantage of this complainant-friendly opportunity, because not giving someone the evidence against them until they show up at the hearing is about as slam dunk a due process violation as you can get. And we would not be surprised if a judge would find it arbitrary and capricious even for a private school. So schools will abuse their discretion in this area at their peril. 

14. A strange credibility rule when people refuse to answer questions (Section 106.46(f)(4))

Under the new regulations, “a decisionmaker may choose to place less or no weight upon statements by a party or witness who refuses to respond to questions deemed relevant and not impermissible. The decisionmaker must not draw an inference about whether sex-based harassment occurred based solely on a party’s or witness’s refusal to respond to such questions.”

This doesn’t make very much sense. While it’s good that a decision maker can—and obviously should—give less weight to the testimony of people who refuse to answer questions, it should logically follow that they should be allowed to draw negative inferences about whether to believe that person.  

 Say, for example, that the respondent’s theory of the case is the complainant made up the allegation to hide the fact that she voluntarily cheated on her boyfriend. And if she refuses to answer questions about her relationship with her boyfriend, including whether she’s ever cheated on him before, a decision maker is allowed to give her testimony less weight—but can’t also use that to “draw an inference” about whether she was actually sexually assaulted? That doesn’t make very much sense, and it will be interesting to see how that plays out. 

15. No more live hearing or cross-examination requirement (Section 106.46(g))

By far the most significant aspect of the 2020 Title IX Regulations was the requirement that, in all higher-education Title IX cases, schools were required to conduct live hearings with mandatory cross-examination by an advisor, who could be a lawyer. As everyone has known it would, since the moment Joe Biden won the election, the Education Department has now eliminated that requirement.  

Schools are still permitted to use live hearings and allow cross-examination, but complainant-side interest groups will put a tremendous amount of pressure on them not to do that. They will argue that live hearings “re-traumatize” “survivors.” But of course, the whole point of a Title IX proceeding is to figure out whether there was any trauma and whether this person is a survivor.  

Some schools may still stand strong and require live hearings, and it will be interesting to see what red-state legislatures require through state-level legislation. But for now, we should expect to see the slow death of live hearing and cross-examination and the return of the single-investigator model, which we have previously referred to as the “Javert” model, for the Les Miserables fans among you.

Schools are still permitted to use live hearings and allow cross-examination, but complainant-side interest groups will put a tremendous amount of pressure on them not to do that. They will argue that live hearings “re-traumatize” “survivors.” But of course, the whole point of a Title IX proceeding is to figure out whether there was any trauma and whether this person is a survivor. 

So schools have a choice: they can either let the parties propose questions that the decision maker gets to decide whether to ask, or they can maintain the system under the 2020 regulations, allowing the advisors to cross-examine the witnesses. Obviously, the latter is the better system, but if you think many schools will retain it, please email us offline so we can talk about the bridge we’d like to sell you.

The new regulations also mandate (at Section 106.46(f)(2)) how questioning must occur at live hearings. Schools must:

(A) Allow each party to propose such questions that the party wants asked of any party or witness and have those questions asked by the decisionmaker, subject to the requirements under paragraph (f)(3) of this section; or 

(B) Allow each party’s advisor to ask any party or witness such questions, subject to the requirements under paragraph (f)(3) of this section. Such questioning must never be conducted by a party personally.

So schools have a choice: they can either let the parties propose questions that the decision maker gets to decide whether to ask, or they can maintain the system under the 2020 regulations, allowing the advisors to cross-examine the witnesses. Obviously, the latter is the better system, but if you think many schools will retain it, please email us offline so we can talk about the bridge we’d like to sell you.

17. Appeal (Section 106.46(i))

Finally, the new regulations retain the requirement that schools offer an appeal to both parties. (The fact that a complainant can appeal a “not responsible” finding is preposterous, but even the 2020 regulations allowed it.)  

While the grounds for appeal in the new regulations remain largely unchanged, there’s a subtle but important difference in the procedural irregularity ground for appeal. Whereas the 2020 regulations said refer to procedural irregularity that “affected the outcome of the matter,” the 2024 regulations refer to irregularities that would “change the outcome” (emphasis ours).  

There’s a big difference between “affect” and “change.” “Change” is a much higher bar. This is a dangerous shift that we hope will receive more attention. It will allow schools to say, “While the respondent’s rights may have been violated in the following several ways, we don’t think any of those violations would have changed the outcome. So, appeal denied!”