Around this time last year, attorneys who represent students involved in Title IX investigations wondered when the Department of Education’s new Title IX regulations would be released and how they would impact how sexual assault is addressed on college campuses nationwide. Would there be more Title IX due process rights for accused students? Would colleges have to investigate cases that occurred off campus? Most importantly, would students have the right to have attorneys cross-examine witnesses during Title IX hearings?
No one could have anticipated that just a few months later, during the spring of 2020, college campuses would close and students would return home for remote learning. When the new regulations were released in May, questions about Title IX investigations paled in comparison to questions about COVID-19. Indeed, we wondered how colleges would survive financially without having a robust cohort of students living in dorms and attending classes. Not surprisingly, many colleges were barraged with lawsuits from disappointed (and sometimes angry) parents demanding tuition and housing refunds. As news about the new regulations came out, we wrote a blog about how although the new Title IX regulations brought about long overdue change, the timing could not have been worse given the complexity of the higher ed landscape.
Fortunately, colleges must now provide more due process rights for accused students. Here are some important highlights:
- Accused students now enjoy a presumption of innocence;
- Colleges don’t have to investigate off-campus cases that bear no relationship to educational activities;
- Students must receive a notice that identifies the parties involved, the alleged misconduct and the date and location of the accusation(s);
- Schools must evaluate all relevant evidence – and parties must be given access to investigative reports at least 10 days before a hearing;
- Adjudicators must be trained to be fair and impartial, and the training materials must be available for anyone interested in viewing the materials;
- If a matter progresses to a hearing, both parties can use an attorney to cross-examine the other party and any witnesses, which greatly expands the rights of the accused;
- Colleges must lay out specific timelines that align with each and every step in the process.
While these changes are significant and meaningful, are Title IX complaints still being filed while students are either engaged in distance learning from home or on campus but subject to restrictions on mass gatherings? In other words, is sexual assault still a problem during a pandemic? In October, Ohio University reported that fewer students on campus likely led to a decrease in reported sexual assaults. This article noted that the college did not have to contend with an influx of reports during the “Red Zone” period, which is the first five to eight weeks of school when college kids flood a campus and most sexual assaults occur. Did the pandemic solve the problem of sexual assault on college campuses?
If only it were that easy. An article in Ms. Magazine examined the social dynamics of the pandemic. Not surprisingly, students in lockdown are still drinking (and drinking a lot) in closed quarters where there are fewer friends and bystanders to intervene when unsafe situations arise. Moreover, the pandemic has caused a rise in mental health issues, such as anxiety and depression, which have contributed to an increase in domestic violence. With students off campus, they cannot as easily avail themselves of Title IX resources, leaving many students feeling isolated and unsupported should a sexual assault occur.
The pandemic did not “solve” the sexual assault crisis. It simply changed the surrounding circumstances. The problem still exists and schools must remain vigilant in enforcing Title IX and providing students with support resources. If you have any questions about this article or you need help, contact Susan Stone (scs@kjk.com / 216.736.7220) or Kristina Supler (kws@kjk.com / 216.736.7217).