I am happy to report that new rules for Title IX university / college misconduct investigations and adjudications will soon provide accused students and educators a more level playing field. New Department of Education rules announced on May 6, 2020, become final on August 14, 2020.
Before this rule change Title IX investigations and hearings often favored the accuser while limiting the accused’s investigations, fact-finding and due process. Beginning August 14, 2020, schools and universities may not impede the accused’s investigations, and they must permit cross-examination by the accused’s advisor or attorney. Cross-examination, which was not permitted before the rule change, is essential to reveal bias, motive, flawed investigations, credibility and other perception issues. The rule change also now permits schools to choose to apply at hearings either the current “preponderance of the evidence” standard (when the allegation is confirmed by evidence that amounts to only the greater weight of the credibile evidence – basically only 50 percent plus a feather) or the higher, more stringent clear and convincing standard (when the allegation is confirmed by evidence that shows that the allegation is highly and substantially more probable to be true than not – and the decision maker has a firm belief or conviction in its factuality), a standard previously denied to the accused. We are hopeful that schools will wisely choose to apply this higher evidence standard, especially in cases involving sexual misconduct allegations.
These new rules and procedures now make it even more important for those accused of Title IX misconduct in an educational setting, to employ counsel and independent investigators early in the process to gather facts, interview witnesses, investigate allegations and prepare for hearings where a meritorious defense can be convincingly presented.
Jay Karahan Law PLLC has extensive experience in successfully defending many of these claims under the old rules, and with these new rules in place the accused’s chances for success are now enhanced. Please contact our office immediately after you or your family member receives any Title IX investigation notice so that we can start working on your case today.