Biden Administration Seeks to Review Due Process Protections under Title IX

March 16, 2021 Advisory

The Biden administration appears poised to follow through on a campaign promise: to roll back the Trump administration’s Title IX Regulations (Final Rule) released by the U.S. Department of Education on May 6, 2020 (effective date of Aug. 14, 2020). Last year, in implementing the Final Rule, former U.S. Secretary of Education Betsy DeVos sought to establish certain additional due process rights for students who were being accused of sexual misconduct before student conduct boards at educational institutions, while still supporting individuals claiming to be victims of sexual misconduct. Recently, the Biden administration issued a new Executive Order requiring the Department of Education to reexamine the Final Rule. The Executive Order appears to signal the administration’s intent to refocus the Title IX process more on complainants’ rights, while removing or reducing additional due process protections that are afforded to accused students under the Final Rule.

Under the new Executive Order, the Secretary of Education is charged with evaluating whether to suspend, revise, rescind, or publish for notice and comments, new proposed rules to replace the Final Rule. The Final Rule affords a variety of enhanced due process protections to the accused, including live hearings and greater involvement of an attorney or advocate which are expected to be evaluated under the new Executive Order directive. One of the most notable provisions of the Final Rule that is expected to be re-evaluated is that the Final Rule provides for actual cross-examination of witnesses, a process which has often been referred to as the “greatest legal engine ever invented for the discovery of the truth.”[1] These procedures were not necessarily, or uniformly, available to accused students prior to implementation of the Final Rule. The Final Rule also provides additional procedural protections for the complainant, such as separate hearing rooms if requested, and it requires educational institutions to offer supportive measures for the complainant.

While it remains unclear how the Department of Education may seek to change the Title IX adjudication process, by requesting reexamination of the Final Rule and drawing upon prior comments regarding the prioritization of victims’ rights, the Biden administration seems poised to implement safeguards in favor of complainants.

Title IX matters can be sensitive and delicate situations for all of the parties involved. Educational institutions are charged with providing students a safe, fair and balanced process in the Title IX context. Recognizing that the accused and the accuser alike must be afforded due process rights in order to protect the interests of all parties, clear and consistent guidance from the Department of Education on how they must handle Title IX investigations and the procedures will be key. This guidance must strike the balance of affording all sides the due process protections they deserve while also creating a system that can be uniformly administered by all schools.

Educational institutions and students alike often benefit from the advice and assistance of outside legal counsel who can guide them through the murky waters of a Title IX investigation and/or a student conduct hearing. The attorneys at Armstrong Teasdale routinely represent the interests of higher education institutions, as well as the interests of students who become involved in the Title IX process. We will continue to monitor and provide updates regarding these developments. If you would like to further discuss the Department of Education’s review of the Final Rule and current Title IX procedures, please contact your regular AT attorney or those listed on this advisory. 

[1] John Henry Wigmore, 3 Wigmore, Evidence Section 1367, p.27 (2d ed. 1923).

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