For the Defense - Vol. 5, Issue 4 - 12

Under the new regulations, complainants are
assured that reports of sexual misconduct will be
taken seriously, that they can decide for themselves
whether to pursue a formal grievance process,
and that they will be given prompt access to a
broad range of supportive measures whether or
not they file a formal complaint. Complainants do
not need to furnish proof of their allegations. If a
complainant chooses to pursue a formal grievance
process, then both parties are assured of specified
procedural protections designed to ensure a fair
process for both of them. If a respondent is found
responsible following the grievance process, then
the complainant is assured of an effective remedy
to restore or preserve access to the benefits of her
or his education.3 Likewise, the respondent can be
subjected to disciplinary sanctions.

Background
How did we get here? Many of the elements
of a fair grievance process outlined in the new
regulations have been informed by court decisions
arising out of the more than 400 lawsuits brought
since 2011 by respondent students against their
colleges and universities in the wake of unfair
proceedings where they were found responsible for
sexual misconduct and subjected to a life-altering
disciplinary penalty (expulsion, suspension, and/or
permanent marks on their records).4 These skewed
Title IX proceedings on our nation's campuses were
instituted in response to the federal government's
aggressive and public steps beginning in 2011
to combat what it viewed as an epidemic of
sexual assault on college campuses, focusing on
countering discrimination against women.5 At the
same time, schools were and continue to be subject
to mounting public pressure-including from
their own student populations-to crack down
on alleged perpetrators of sexual misconduct.
Sexual assault claims must be taken seriously and
investigated properly. In pursuing these laudable
goals, however, many schools went too far,
essentially eliminating due process protections for
accused students, the great majority of whom are
male.6
In 2017, the U.S. Department of Education
reaffirmed basic principles needed for fair and
reliable proceedings and began taking steps to
implement those principles. In September 2017,
it rescinded previous guidance documents and
issued new interim guidance. The Department
then published proposed regulations for notice
12

For The Defense l Vol. 5, Issue 4

and comment in November 2018, receiving more
than 100,000 comments, an unprecedented
number. The regulations were finally issued on
May 19, 2020 and took effect on August 14, 2020.
The new regulations appear at 34 C.F.R. ยงยง 106.1106.82.

Protections
The new regulations require colleges to provide
several key procedural protections to any student
or faculty member accused of sexual misconduct
before a determination is made as to responsibility.
A respondent must be presumed not responsible
for the alleged conduct unless and until a final
decision is made at the conclusion of the grievance
process.7 Complaints must be resolved in a timely
manner.8 Both parties must be given complete
and correct information about the process,
including the standard that applies (generally,
preponderance of the evidence), the potential
sanctions, appellate rights, and the supportive
measures available.9 Schools must investigate
allegations and objectively evaluate all relevant
evidence, both inculpatory and exculpatory,
ensuring that credibility determinations are not
based on a person's status as a complainant,
respondent, or witness.10
When a formal complaint is filed, the school
must give the parties written and timely notice of
its grievance procedures and the allegations, and
the school must also notify the parties if it later
decides to investigate additional allegations.11
Formal complaints must be investigated and
must be dismissed if the alleged conduct does
not constitute sexual harassment as defined
in the regulations or did not occur within the
college's education program or activity.12 (This
does not mean that a school is precluded from
investigating and adjudicating an allegation of
sexual misconduct under its code of conduct or
other school policies, as noted in the next section.)
School officials involved in Title IX proceedings
must not have a conflict of interest or bias for
or against complainants or respondents (either
generally or specifically).13 A school must train
its officials on the definition of the term sexual
harassment and how to conduct an impartial
investigation and how to conduct an unbiased
grievance process, " including by avoiding
prejudgment of the facts at issue, conflicts of
interest, and bias. " 14 A decision-maker cannot also



For the Defense - Vol. 5, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 5, Issue 4

Contents
For the Defense - Vol. 5, Issue 4 - 1
For the Defense - Vol. 5, Issue 4 - 2
For the Defense - Vol. 5, Issue 4 - Contents
For the Defense - Vol. 5, Issue 4 - 4
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For the Defense - Vol. 5, Issue 4 - 6
For the Defense - Vol. 5, Issue 4 - 7
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For the Defense - Vol. 5, Issue 4 - 52
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https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue1_2017
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue4_2016
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