Last Friday, the Department of Education published the final Title IX rule which rolls back the rights of students accused of violating Title IX misconduct policies. To summarize, the most pervasive effects of the new regulations are as follows:

1. Critical truth-seeking procedures are no longer required, and schools are incentivized to abandon them
2. Definitions of misconduct are broader, vaguer, and misconduct determinations are more subjective
3. Proceedings will be less transparent, and accused students will have less access to evidence
4. Schools have broader flexibility and less accountability with how they treat the accused
5. Conversely, schools have narrower flexibility and more accountability with how they respond to accusations
6. Accused students from low-income backgrounds, with disabilities, or who present with other challenges (e.g., foreign students for whom English is a second language and to whom U.S. systems are entirely unfamiliar) are at a particular disadvantage

In combination, these changes produce a negative synergy that will lead to a sharp increase of erroneous findings of “guilt” against accused students. This should set off alarm bells for anyone concerned about the rights of the accused and institutional accountability. I will go into more detail below. While these are some of the most impactful changes, they should not be regarded as exhaustive.

Less Access to Evidence

The devil is in the defaults here. Previously, schools were required to provide access to all the evidence against the accused, regardless of whether it was deemed irrelevant by school officials. Now, schools are required to provide a mere “description” of the evidence. Students are able to access the relevant evidence upon request, so long as it is not evidence the school has deemed irrelevant.

This raises several questions, such as why accused students are not provided with the relevant evidence against them by default. And when an accused student does request the evidence, does fulfillment of the request only apply to evidence obtained up to that point? Will school officials take the initiative to promptly update the accused as new evidence is obtained that could be used against (or for) them, or must the accused have the clairvoyance to make additional requests in a timely manner (so as to have time to properly respond to the new evidence) as that new evidence is obtained? The regulations do not say. This is why schools should provide access to evidence from the outset and as an ongoing matter.

The requirement for schools to deny access to evidence it deems “irrelevant” also opens a door for schools to improperly deny access to evidence by erroneously classifying it as irrelevant. There is no way for an accused student to know whether this has occurred before the school decides his fate, and the only way to find out later is to sue, survive a motion to dismiss, and succeed in discovery requests.

Lastly, accused students will in many cases have less time to review evidence. Prior regulations required schools to provide “at least 10 days” to view the final investigative report. No longer; in its place is the requirement that schools provide a “reasonable opportunity” to review and respond – again, with “reasonable” defined by the school. Unfortunately, the regulations do give schools an idea of just how little time they are required to allow accused students to review evidence: zero. If a school adopts a live hearing model, it may delay providing the evidence to the accused student until the actual hearing.

Return to the Inquisitorial Single Investigator Model

Colleges will no longer be required to provide a full live hearing in which both parties can see and hear each other’s testimony, cross-examine them in real time through an advisor in the presence of a neutral decision-maker, and personally observe and verify the framing and content of the questions posed to the other party.

Instead, schools will be allowed (and incentivized) to return to the secretive “single investigator” model in which one person can serve as both the investigator and decision-maker who questions the parties one-on-one behind closed doors before compiling a final report and making the decision of whether the accused is responsible.

One unexpected silver lining is that if schools opt for the single investigator model, they must provide a transcript of the meetings with either party “with enough time for the party to have a reasonable opportunity to propose follow-up questions.”

However, what time is reasonable is left up to the school to decide. Additionally, there is nothing in the regulations preventing schools from omitting sections of the transcript by classifying them – properly or improperly, and by accident or ill intent – as irrelevant. There also appears to be no safeguard against transcripts that are incomplete due to simple human error, or transcripts with sections that are essentially rewritten – again, whether by human error or ill intent.

The regulations provide that students may propose questions that they want the investigator to ask a party or witness, but there is no requirement that the investigator actually ask them. So here, we have a misalignment that disadvantages the accused: schools can dismiss “irrelevant” testimony but have no obligation to seek relevant testimony.

All of this is why live hearings are better for truth-seeking than the single investigator model. As the saying goes, sunlight is the best disinfectant.

Another less obvious shift is that the reversion to the single investigator model eliminates critical “buffer zones” between the investigator and decision-maker. In practice, this means that any kind of frustration or antagonism arising between the investigator and the accused student or their advisor – including during the initial meeting with the investigator when the accused student is often unadvised, alone, unpracticed, and distraught – will likely persist for the duration of the grievance process and may affect the outcome.

The Sex Police Expands Their Jurisdiction

Previously, schools lacked the authority to investigate under their Title IX policies if the alleged misconduct happened outside an education program or activity. Now, under §106.11, schools must investigate even if it happened outside such programs or activities, in another state, or in another country. The effect of this will be that schools will hire and train personnel who see it as their role to aggressively police “everything everywhere all at once.”

Previous regulations did not preclude schools from investigating such cases under their “non-Title IX” policies, and schools did use that as an excuse to investigate while providing weaker procedural protections (examples: Doe v. Rutgers and Doe I v. SUNY-Buffalo). Such cases will now be investigated under schools’ Title IX policies.

Additionally, under §106.45(a)(2), schools are now obligated to investigate complaints even if the accuser has graduated, transferred, or otherwise left the school.

Broader, Vaguer, More Subjective Definition of Hostile Environment Sexual Harassment

Prior regulations defined sexual harassment under the standard set forth in the Supreme Court decision Davis v. Monroe County Board of Education: conduct that is “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” The 2024 regulations have replaced it with the following definition:

Unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity.

The key additions here are “limits” and “subjectively.” There can be a world of difference between something “limits” someone’s access to an educational activity versus something that denies their ability to participate in that activity, especially when we add subjectivity to the mix.

The new regulations introduce a five-factor balancing test to determine whether hostile environment harassment has occurred. On the surface, a five-factor test would seem to indicate a more precise system. But this isn’t like injunctive relief determinations in federal courts where judges must regard either irreparable harm or likeliness to succeed on the merits as critical “threshold factors” that must be satisfied above all others. Instead, schools may subjectively place whatever weight they wish on any of these five factors.

So, if you are a decision-maker and wish to find an accused student responsible of hostile environment sexual harassment, simply pick the 1-2 factors that best favors the accuser – even if the other 3-4 factors favor the accused – and subjectively place a disproportionate weight on them. Then check the box that you have “considered” the other factors so you can demonstrate your decision was reached “subjectively and objectively.”

Training Materials No Longer Publicly Available

Here again, we see the theme of less transparency. The 2020 regulations required that schools publicly post their training materials. There was a good reason for that: such materials were plagued by gender bias, junk science, and misinformation. For example, Stanford’s training materials famously instructed decision-makers that an accused student acting “persuasive and logical” is an indicator of guilt.

Now, accused students must request those materials – assuming they are aware that they can access them, which they likely won’t without the assistance of an advisor. There is nothing in the notice requirements – when schools send the accused student notice of the allegation and inform them of their rights – that requires schools to inform accused students that they have the option to request these materials. Nor do the regulations mention any timeframe that schools must abide by when providing access to those materials upon request – not even a timeframe of “reasonableness” as defined by the school.

Conclusion

While this list is by no means exhaustive, it represents most or all of the biggest changes affecting accused students. Expect that the final rule will be challenged in court.