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Proposed Title 9 Changes May Put Universities At Risk Of Litigation

The latest round of sweeping proposed Title IX changes could put universities in the crosshairs of litigation by college and university students accused of sexual misconduct, reports The Biden administration's Office for Civil Rights (OCR) in the Department of Education suggests an allowance for schools to return to the single-investigator model, the ability to offer an informal resolution procedure, and the elimination of a live hearing requirement in their handling of sexual misconduct on campus. Some advocates are worried. “I am deeply concerned that in the guise of giving universities ‘flexibility,’ the Department of Education is authorizing the roll back or revocation of due process and fairness rights for both parties: full access to evidence, and the right to a live hearing and direct, real-time cross-examination,” said Patricia Hamill of the Conrad O’Brien law firm. Title IX, a federal civil rights law prohibiting sex-based discrimination at any educational institution receiving federal funding, has undergone many changes over 50 years. In 2011 OCR gave guidance to schools on complying with Title IX. In 2017, the Obama-era changes were rescinded by Betsy DeVos, the Trump administration's Education Secretary, in favor of a more narrow definition of what constitutes sexual harassment. Now, the Biden administration's OCR is making its own changes, including dropping the requirement for cross-examination.

Brooklyn College Professor KC Johnson agreed with Hamill that the most impactful potential change is "the elimination of the right to a live hearing." Johnson said some federal courts require a live hearing at public universities. In federal circuits where the issue has not been settled by the courts, many new lawsuits are likely. Since the Obama administration’s guidance, accused students have filed 477 lawsuits in federal courts and 197 in state courts. After DeVos rolled back many of the Obama-era changes, lawsuits by accused students dropped by more than 50 percent, said Johnson. Now under the Biden administration, that number is likely to increase dramatically. The Department of Education’s new proposal “essentially allows universities to go back to what they used to do and which has spawned an incredible amount of litigation—more than 400 lawsuits by accused students since 2013,” Hamill said.


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