On Wednesday, May 6, the U.S. Department of Education (USDOE) released final regulations under Title IX. These regulations come after the USDOE sifted through over 124,000 comments during the public comment period. The new regulations focus on how colleges and universities must investigate and adjudicate sexual misconduct cases under Title IX. 

The regulations introduce a number of significant changes to the investigation and adjudication of sexual assault cases. By far the most controversial change is the requirement of a live hearing with cross-examination. The hearing officer will be required to rule on the relevance of cross-examination questions and to explain the basis for finding any question irrelevant. Colleges and universities will be obligated to provide a student with an advisor, who will ask cross-examination questions, at no cost to the student if the student does not have an advisor. For most institutions, these changes pose burdensome practical and administrative challenges, not the least of which is identifying and training personnel to perform the quasi-legalistic roles the new regulations require.

Another potentially significant development is the requirement that a college or university decide the merits of allegations using either the preponderance of evidence or clear and convincing evidence standard. However, the institution must use the same standard for all constituencies on campus, including faculty. As faculty disciplinary policies often contain the higher clear and convincing standard, institutions either will need to modify their faculty discipline policies, which may involve an extensive shared governance process, or apply the higher clear and convincing standard to all other Title IX cases, including those involving students and non-faculty staff.

The regulations impose a number of other specific procedural requirements for Title IX investigations and adjudications, some of which already are contained in New York’s Enough is Enough Law and others that go beyond current New York law. However, there are aspects of the new regulations that are in conflict with New York law, particularly as concerns New York’s now lowered workplace sexual harassment standard.

Despite the current COVID-19 national emergency, the USDOE has determined that these final regulations are effective August 14, 2020. 

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