Issues & Insights

New Title IX Rules Strengthen Rights For Victims And Due Process For Accused

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For nearly a decade, college administrators used the pseudo-legal authority they received from the Obama Administration to set up Wonderland-worthy courts where the Queen of Hearts’ motto, “sentence first – verdict afterwards,” was the law of the land. While many argued this was done to make it easier for victims to come forward, there is no evidence it actually reduced sexual assault on campus. Nor did it help victims. This lack of clarity hurt students who’d been attacked and students who’d been unjustly accused.

I have a unique perspective on these issues.  For more than a decade I have worked as a licensed social worker with survivors of sexual abuse.  As a longtime Nashville attorney specializing in Title IX cases, I’ve also defended those falsely accused of sexual misconduct in the extremes of minor and trivial complaints that ruin lives.

These students have survived an unjust and unfair process.  My cases have included representing a student who was charged under Title IX for allegedly touching a girl on her head (this was not on a date or in a romantic setting).  Another client was charged for sexual misconduct for touching a student on her elbow at a dance because he was trying to move her out of the way of another person. And one male student was charged for giving an honest compliment to a friend on her outfit.

These are among the cases that allow college administrators to start the process of kicking students out of school and labeling them a sexual predator on their academic record.  But they barely scratch the surface of reasons of why changes needed to be made to Title IX, the law that bans sex discrimination in schools. The Department of Education recently released regulations that establish a basic level of privacy for accusers and fundamental due process for the accused. Those who say we cannot have due process and help victims are creating a false choice. We can and must have both and that’s reflected in the long overdue regulations.

In March, the Department of Education Office of Civil Rights released its findings from an investigation of sexual misconduct cases at Penn State University.  A review of more than 300 case files involving reports of sexual harassment found numerous procedural errors that seriously damaged the right of both complainants and respondents to a fair process.

Unfortunately, some insist on preserving the ways of the past and say the outlined reforms hurts victims. That’s simply not true. It merely requires that accused students not be punished or expelled until/unless they’re found guilty, that all evidence including exculpatory evidence is disclosed, and that all faculty involved in the investigation are free of conflicts of interest or bias.

In reality, the new Title IX reforms strengthen the rights of victims.  Specifically, the regulations: require the school to actually investigate allegations and do so in a timely manner; ensure accusers are not required to disclose any confidential records, including medical and psychological; require the school to give the accuser support in the form of class or dorm reassignments, no-contact orders against the accused, etc., even if they have not initiated an official investigation; allow the accuser to participate in dispute resolution or withdraw their complaint if they so choose; discourage minor complaints that harm the credibility of survivors; and define the proper process of investigation including appeals.

For victims, this means the end of paperwork backlog, slow-walked investigations, disclosure of personal health records, and stalled class and dorm reassignments.  For the accused, it means the end of surprise administration letters saying that you’ve been accused of sexual assault and subject to expulsion without evidence or any specifics.

Sexual assault is a serious crime, and the patchwork response from college administrators that has stood for nearly ten years can no longer stand. We need national standards are fair to all students. That is the only way to ensure justice for survivors and due process for the accused. Thankfully, the new guidance on Title IX does just that.

Michelle Owens is a managing partner specializing in Title IX defense, education disciplinary defense, professional license defense and labor law at Agee, Owens & Cooper in Nashville, Tenn.

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