On June 23, 2022, on the 50^th anniversary of Title IX, the Department of Education released its proposed changes to the current regulations implementing Title IX. Title IX of the Education Amendments of 1972 is a federal law prohibiting discrimination on the basis of sex in education.

Unfortunately, some of the proposed changes to the regulations roll back the procedural fairness provided to accused students in higher education sexual misconduct proceedings under the current regulations:

1. No cross-examination of complainants: Under the current regulations, both parties have the right to cross-examine each other, although such cross-examination may only be conducted through the use of an advisor or attorney (the complainant cannot be cross-examined directly by the respondent), and the parties can be in separate rooms during cross-examination. The proposed regulations eliminate the requirement for cross-examination of complainants.
2. Respondents not entitled to live hearings: Under the current regulations, the respondent is entitled to ask questions, bring witnesses and have a live hearing when determining responsibility for sexual misconduct in college and university proceedings. The proposed regulations eliminate the requirement for live hearings at colleges and universities.
3. Return of the “single investigator” model: Under the current regulations, the investigator cannot determine the outcome; there must be a hearing. Under the “single investigator” model, complaints of sexual misconduct are handled by one individual (employed by the school for this purpose) who both investigates and determines the outcome of a sexual misconduct accusation. The proposed regulations permit the return of the single investigator acting as investigator and adjudicator.

Lisa Seltzer Becker is a Principal at Offit Kurman, P.A. She can be reached at (240) 507-1780; lbecker@offitkurman.com.