Article: New Title IX Rules Will Impair Students’ Right to Due Process

Posted on by Scott Limmer
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Title IX, the federal civil rights law that Congress enacted to prohibit sex discrimination in colleges and universities that accept federal funding,[1] has spawned conflicting and controversial regulatory approaches to student disciplinary proceedings. While there is general agreement that Title IX requires covered educational institutions to protect students from sexual misconduct, the Office for Civil Rights (OCR) in the Department of Education has not prioritized the rights of accused students who face expulsion or suspension.

History of Title IX Rules

The OCR issued a guidance[2] in 2011 that urged schools to use a preponderance of the evidence standard at disciplinary hearings when determining an accused student’s guilt of prohibited conduct covered by Title IX. The guidance encouraged schools to abandon the clear and convincing evidence standard that typically governs severe or stigmatizing sanctions imposed in civil proceedings.[3] The guidance also condoned disciplinary procedures that prohibit the accused student’s lawyer from participating in the proceeding, that limit the student’s opportunity to cross-examine the accuser, and that deprive the student of access to evidence.

Protests from law professors and other concerned members of the public,[4] as well as court decisions that mandated respect for due process in proceedings that could result in expulsion or other serious discipline, were driving forces that motivated OCR to revoke the guidance in 2017. After a notice-and-comment period, regulations took effect in 2020 that balanced the school’s duty to protect students from sexual misconduct and its duty to protect the due process rights of accused students.[5]

Proposed Revision of Title IX Rules

The change of administration in 2021 has again prompted OCR to propose changes to its rules. A positive change would prohibit discrimination on the basis of gender identity and pregnancy.[6] Protecting LGBTQ and pregnant students furthers Title IX’s goal of eliminating sex discrimination in a school’s programs and activities.

Unfortunately, the proposed rules upset the balance that the 2020 rules achieved between the need to protect student victims of sexual misconduct and the need to protect students who are wrongly accused. The proposed rules do not mandate disclosure of exculpatory evidence. They allow schools to withhold disclosure of investigation reports and witness statements if they instead provide a summary of evidence that the school’s investigators regard as relevant.[7]

The proposed rules prohibit schools from using a clear and convincing burden of proof unless the school uses the same standard for less consequential factfinding proceedings.[8] The rules not only permit schools to dispense with the student’s right to cross-examine the accuser, they allow schools to dispense with a hearing entirely and to meet with the parties individually and out of the other’s presence.[9] While schools will be permitted to allow a student’s lawyer (but not the student)[10] to cross-examine the accuser, the school will have the option of allowing the student’s lawyer to “propose” questions that the decisionmaker can reject or rephrase.[11]

Finally, the proposed rules do not entitle the accused student to a neutral decisionmaker. Rather, they allow the investigator or Title IX Coordinator who brings the charges to act as the decisionmaker.[12]

Reaction to New Title IX Rules

Unfortunately, most opposition to the new rules has come from states and organizations that oppose the expansion of protection against sex discrimination to LGBTQ students.[13] Significantly less attention has been paid to the proposed gutting of the right to due process for students who may be facing expulsion or suspension.

The finalized rules were first scheduled for publication in May 2023. That deadline was moved ahead to October 2023 in response to an outpouring of comments regarding a proposed rule addressing transgender athletes. The October deadline has passed, and the new tentative deadline is April 2024.

Scott Limmer concentrates his practice in the areas of criminal defense and representation of college and graduate students when charged with violating their school’s code of conduct.

  1. Title IX of the Education Amendments of 1972, as amended, is codified at 20 U.S.C. § 1681 et seq. ↑
  2. Dear Colleague Letter: Sexual Violence, U.S. Dept of Educ., Office for Civil Rights (Apr. 4, 2011) (rescinded in 2017). ↑
  3. See, e.g., Doe v. Univ. of Miss., Civil Action 3:18-CV-138-DPJ-FKB (S.D. Miss. Sep. 5, 2023) (noting that the correct burden of proof in student disciplinary hearings that involve allegations of sexual misconduct presents a “thorny issue”). ↑
  4. See, e.g., Elizabeth Bartholet, Nancy Gertner, Janet Halley & Jeannie Suk Gersen, Fairness for All Students Under Title IX, Harv. L. Sch. (Aug. 21, 2017); Open Letter from Members of the Penn Law School Faculty (Feb. 18, 2015).. ↑
  5. 34 C.F.R. Part 106. ↑
  6. See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 87 Fed. Reg. 41390 (July 12, 2022) [proposed § 106.10). ↑
  7. Id. § 106.46(f)(4). ↑
  8. Id. § 106.45(h)(1). ↑
  9. Id. § 106.46(f)(1)(i). ↑
  10. Id. § 106.46(f)(1)(ii). ↑
  11. Id. § 106.46(f)(1)(i). ↑
  12. Id. § 106.45(b)(2). ↑
  13. Bess Levin, 22 Republican States Sue Biden Admin for the Right to Discriminate Against LGBTQ+ School Kids, Vanity Fair (July 28, 2022). ↑