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How Betsy Devos’ Title IX Regulations Affect Investigations at Washington Universities

The Secretary of Education, Betsy Devos, released her long-awaited Title IX regulations yesterday. It was in October of 2018 that I flew to Salt Lake City to testify at Department of Education public hearings on the subject, so that means the regulations were considered for over 18 months. This time frame is in stark contrast to the issuance of the Dear Colleague Letter issued in 2011, which was done with little input from the public.

The new regulations spell out when a university must take action with respect to activity at their school. The standard is when there is "unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school's education program or activity." It was suggested to Betsy Devos that the department should deny colleges the authority to discipline students for off-campus incidents (such as incidents in greek chapter houses) but Devos did not take that step in the new rules. The legal standard is quite different than what was spelled out in the Dear Colleague Letter. Under those guidelines, "any unwelcome conduct of a sexual nature" was something that schools needed to prohibit and enforce, and this led students to be punished for speech protected by the First Amendment. 

The regulations also spell out what procedural standards universities must use when investigating sexual assault and conducting hearings. Colleges must provide students with detailed information about the allegation brought against them. The new rules explain that "a party cannot be fairly expected to respond to allegations without the allegations being described prior to the expected response." Colleges must let an accused know "the identities of the parties involved in the incident" and "the conduct allegedly constituting sexual harassment" and "the date and location of the alleged incident." It is also made clear under the rules that in an initial notice to the accused the school must state that the respondent is "presumed not responsible for the alleged conduct." The new rules also provide that both the accuser and the accused can "inspect and review any evidence obtained as part of the investigation."  

One of the biggest changes under the new rules is that the attorney or advisor for the accused has a right to cross-examine the accuser. At public universities, such as WSU or EWU, an accused student already has this right under our local decision in Arishi v. WSU. However, this now means that private universities, such as Seattle U or Gonzaga will have to allow cross-examination in Title IX context.

For more on university discipline issues, see our recent posts on academic integrity and rescinding admissions.