Dillon PLLC's Guide to Current Title IX Regulations
The Education Department’s 2020 Title IX regulations were a watershed moment for Title IX cases on college campuses. Although the Biden Administration tried to undo some of them in 2024, those efforts ultimately, and happily, failed. So the 2020 regulations remain the law of the land. Here is our practical guide to some of the highlights, in the order they appear in the regulations.
1 – EMERGENCY REMOVAL (Section 106.44(c))
Before 2020, schools would often throw students off campus as soon as a complaint was filed. We once handled a case where an international student was summarily suspended before his investigation had even started, thus causing him to lose his visa and be forced to return to his home country. When we pointed out that this was a pretty clear due process violation, the school caved and let him back in (and ultimately cleared him of all charges). But it shouldn’t have taken a law firm to do that.
Under the 2020 regulations, schools have to do an “individualized safety and risk analysis” and can kick someone off campus only once they have determined that the student poses an “immediate threat to physical health or safety.” Given that many Title IX complaints are filed weeks, months, or even years after the conduct in question, this will make it a lot harder for schools to play games with interim measures.
Finally, a respondent will have a “notice and opportunity to challenge the decision immediately following the removal.” To be sure, it would be better if that opportunity were given immediately before the removal, but let’s not look a due process gift horse in the mouth.
2 – BURDEN OF PROOF (Section 106.45(b)(5)(i))
The 2020 regulations require schools to use the same burden of proof for students as for employees. At schools with collective bargaining agreements with staff and faculty, this can be tricky for schools to navigate.
Unions, for example, like to protect their members. One way they do that is by requiring a higher burden of proof than a preponderance of the evidence—namely, clear and convincing evidence—before any adverse action can be taken against a member. Under the new regime, schools will no longer be able to have one standard for employees and another one for students. Everybody either gets the higher standard or the lower standard. Full stop.
In practice, we have not seen much of a change since the new regulations were implemented; schools have, alas, defaulted to the lower standard of proof. But it will be interesting to see if this changes in the years to come.
3 – NOTICE REQUIREMENT (Section 106.45(b)(2))
This was a small but significant change in the 2020 regulations. Under the Obama-era guidance, there was no notice requirement. Schools could literally send you a charging document that said you had been accused of sexual misconduct on a particular date, and that was it. No details, no description of what you supposedly did.
Not so with the 2020 regulations.
Now, schools have to give a respondent “sufficient details known at the time and with sufficient time to prepare a response before any interview.” That notice must include the “conduct allegedly constituting the sexual harassment.”
Moreover, they now have to tell you that you have the right to an attorney. The previous rule did not require that, and it will surprise no one who follows these issues that, while many schools told you you have the right to an “advisor of your choice,” they didn’t bother to say that that advisor could be a lawyer—a fact that often does not occur to scared college students.
Finally, the notice of requirement is
ongoing—if a school learns more information, it has to share it with the parties. This will stop the games of “gotcha” that schools are too often happy to play.
4 – MANDATORY DISMISSAL (Section 106.45(b)(3)(i))
This is a fascinating one.
The 2020 regulations include something that has appeared in no previous guidance we’re aware of—conditions under which a school must dismiss a complaint.
The three most interesting are as follows.
First, if the complaint does not rise to the level of sexual harassment as defined in the regulations, it must be dismissed. So, for example, an off‑hand comment of a sexual nature or a wolf whistle—something that people in previous generations would have blown off but current administrators are happy to pounce on—is no longer going to be prosecutable. (That said, you can bet good money that some highly ideological Title IX coordinators will try to move forward anyway–we have seen that happen several times since 2020.)
Second, the conduct must occur in the context of an “education program or activity.” This makes sense. The whole point of Title IX is to provide equal access to education, not to be a generalized code of student conduct. So if the conduct does not occur in an educational program or activity, the schools have no business punishing it.
Third, if the conduct did not occur in the United States, a school can’t touch it. So if, for example, two college students are backpacking around Europe, have drunken sex in Amsterdam, and then one of them says it was assault, a school can no longer put that through its Title IX process.
5 – A RETURN TO COMPLAINANT AUTONOMY (Section 106.45(b)(3)(ii))
The 2020 regulations also returned autonomy to the complainant.
Under the previous system, once a complaint had been filed, the train had left the station, and a complainant couldn’t withdraw a complaint even if she wanted to. (No, really.) The new regulations empower the complainant to dismiss her case and ask for informal resolution at any stage.
In short, the complainant gets back in the driver’s seat, which is where she belongs. A school should not proceed with a complaint if the complainant doesn’t want to proceed with it. And if the complaint is serious enough that a school can genuinely say that the respondent poses a potential danger to the community, then a criminal investigation can pick up where the school leaves off. That is as it should be.
6 – EVIDENCE GATHERING (Section 106.45(b)(5)(iii))
This is a big one.
The 2020 regulations say that schools may “not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence.” Surely this is already the rule, you say. Surely schools wouldn’t dare to tell respondents, for example, that they can’t reach out to witnesses who might be able to help them.
Alas, not so much. Many private schools actually prohibit the parties from interviewing witnesses or contacting them at all.
Of course, these rules are never enforced against complainants, who are free to talk to all of their friends about what happened, getting all of their stories straight, before deciding to file a complaint days, weeks, months, or even years later. But when the respondent gets the notice and wants to reach out to witnesses who can say that it never happened, or that the complainant did not actually look that drunk, he is prohibited from doing so.
You would think a rule like this could only happen in North Korea, but you would be wrong. Happily, the 2020 regulations changed that.
7 – YOU GET A COPY OF THE EVIDENCE (Section 106.45(b)(5)(vi))
Under the pre-2020 regime, schools were not required to actually give the parties a copy of the evidence against them. Notre Dame, for example, literally made you go into a room with no phone and no computer and take handwritten notes on a piece of paper.
This is as ridiculous as it sounds. Especially in cases where the reports get very long – we have had several cases where the investigation report exceeded 500 pages – there is no way to effectively defend yourself if you can’t have a copy of the evidence. Many schools didn’t care about that.
But the DeVos Education Department did. So since 2020, schools have been required to send a copy of the evidence at two different stages of the case – once, at least ten days before any investigation report is completed, and then again at least ten days before the hearing. Moreover, the parties are allowed to submit a written response to the draft investigation report, and the regulation states that the investigator “will consider” that response before completing the investigation report.
In other words, you get a copy of the evidence, you get to respond to it in writing, and the investigator has to consider it. Radical stuff, this is not. But it took a federal regulation to make it happen.
8 – LIVE HEARING (Section 106.45(b)(6)(i))
This is, perhaps, the most important change that the 2020 regulations effected. No longer will schools be able to use what we have previously referred to as the Javert model, for the Les Misérables fans among you. No longer can a single investigator—sometimes a former sex crimes prosecutor or victim’s advocate—serve as judge, jury, and executioner. Now there’s a live hearing.
And it gets better. During that live hearing, both parties and witnesses are subject to cross-examination by a party’s advisor. If a party cannot afford an advisor, the school has to provide one free of charge. That doesn’t have to be a lawyer, but it has to be someone. Obviously, anyone who can afford a lawyer should hire one to do this, because cross-examination is far more productive when conducted by someone who’s done it before. Parties and witnesses do not have to subject themselves to cross-examination. So if they believe it would be too traumatic, they can refuse to participate.
There are other protections for complainants who are willing to submit to questioning but don’t want to do so in the same room. The regulations state that complainants and respondents do not have to be in the same room, for example–and in practice, hearings have moved mainly to Zoom now, so separation isn’t an issue.
And finally, the 2020 regulations require the school to record or transcribe the hearing and make it available to both of the parties. Sunlight being the best disinfectant (more on that later), this was a very good change. (We don’t think there were any stenographers in the Star Chamber.)
9 – THE DECISION (Section 106.45(b)(7))
At the end of the hearing, the panel must make findings of fact and give a rationale for its reasoning. You would think they would do this every time, but you would be wrong. If you look up “tautology” in the dictionary, there is probably a picture of the average Title IX findings letter. It will surprise no one who has ever had to justify a decision that when you have to explain your reasoning, it gets a little harder to hide sloppy reasoning. Making people explain why they are reaching the conclusion they’re reaching is a terrific innovation.
10 – APPEAL (Section 106.45(b)(8))
Both parties still have a right to appeal, as they have had for years. Unfortunately, the 2020 regulations only required three grounds for appeal, although schools can add more: (1) procedural irregularity, (2) new evidence not reasonably available at the time of the hearing, and (3) conflict of interest or bias on behalf of the decision maker.
It would have been nice if they added insufficient evidence, because that would have allowed what the best appeal processes do—a safety valve during which a senior administrator can review a panel’s finding, when that panel may have been unduly swayed by emotion and focused insufficiently on the evidence. This is a disappointment in the 2020 regulations, but schools are free to supplement and add that factor if they would like to do so.
11 – TRAINING MATERIALS (Section 106.45(b)(10)(i)(D))
Finally, the 2020 regulations require schools to publish their training materials on their web sites or make them reasonably available if they don’t have a website. (What school doesn’t have a website these days?)
This is what might be fairly called “the Emily Yoffe rule.”
Ms. Yoffe’s groundbreaking expose in the Atlantic back in 2017 exposed in great detail the fake science and bogus statistics that undergird many of the training materials used in Title IX cases. There is a reason, it turns out, that schools have refused to make them public and that they have only been made public during litigation.
It will be very interesting to see how schools respond to this. It will be even more interesting to see whether there is backlash from tuition-paying parents who can finally see the sort of garbage that is fed to Title IX investigators on campus. No longer will schools be able to teach investigators or panelists to “start by believing,” which is surely one of the more abominable phrases to come out of the modern Title IX era. Start by listening with respect, start by being sensitive, yes. But in no other area of American life where two people are disputing whether a thing happened do we “start by believing” one side. To suggest otherwise is to engage in Orwellian newspeak with a Title IX tinge.
