This week, the United States Department of Education (DOE) announced a new Title IX enforcement initiative led by the DOE’s Office for Civil Rights (OCR) to combat the rise of sexual harassment, sexual assault, sexual misconduct, and sexual violence incidents occurring in elementary and secondary (K-12) public schools involving both student-on-student and staff-on-student incidents.

OCR

In November 2018, the U.S. Department of Education (DOE) proposed new Title IX regulations concerning sexual harassment, including sexual assault, and received over 100,000 comments during the public comment period. As of today, the regulations have not been finalized. However, four congresspersons recently introduced legislation in the House of Representatives that would prohibit implementation of

Fall is here and in full swing! Many of us thought that as we sipped hot apple cider and watched the leaves on the trees change color, we would also be mulling over the new regulations issued by the U.S. Department of Education. Betsy DeVos’ timetable is clearly not ours. While we wait for the regulations to be issued, let us look at our current Title IX investigations and what we can do to improve them. Here they are—the top ten pitfalls of Title IX investigations and how to avoid them:

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As expected, the U.S. Department of Education (DOE) recently released proposed Title IX regulations, specifically concerning sexual harassment, including sexual assault. This is significant because the DOE has never addressed these issues through regulation. In the past, guidance has only been available through informal resources, such as the 2011 Dear Colleague Letter and the 2014 Guidance/Q&A. As discussed in previous blog posts, these new regulations, if adopted, would constitute a substantial departure from prior guidance. 
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As we suggested in our February 2017 blog post, the future of Title IX application in our institutions is in flux. The Department of Education Office for Civil Rights rescinded the Obama era 2011 Dear Colleague Letter and 2014 Guidance on September 22, 2017. These guidelines placed certain procedural requirements on investigations of sexual misconduct allegations conducted by postsecondary institutions receiving federal funding. The Department of Education (“DOE”) stated that the policy requirements in these documents led to procedures that did not adequately protect the rights of the students accused of sexual misconduct. Specifically, the DOE criticized these guidelines for: requiring a preponderance of the evidence standard, requiring Universities with appeal processes to allow accusers to appeal “not guilty” outcomes, discouraging Universities from allowing cross-examinations by the parties, prohibiting the Universities from relying on law enforcement investigation reports, and requiring Universities to employ an expedited timeline for investigations. Therefore, the DOE stated it is currently in the process of developing new regulations that it will issue for public comment by all stakeholders. Until more formal regulations are adopted, schools are to follow the Q&A issued on September 22, 2017. 
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The rights due to a student under Title IX continue to evolve. Title IX prohibits discrimination based on “sex,” which historically has meant that biological male and female students are required to be treated as equals. Recently, a California federal court held that “sex” discrimination also includes discrimination based on a student’s sexual orientation. Videckis v. Pepperdine University, 150 F. 3d 1151 (U.S.C.D. Calif. 2015). 
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