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Let’s Approve the New Title IX Regulation, End Campus ‘Kangaroo Courts’

SUCCESS! On May 6, 2020, the Department of Education released its new Title IX regulation. The regulation, which will support both complainants and the accused, takes effect on August 14, 2020.


Campus disciplinary committees have often been derided as “Kangaroo Courts” due to their deeply flawed procedures. On November 16, the Department of Education released its long-awaited Title IX regulation designed to restore fairness to campus investigations and adjudications. The proposed regulation can be seen HERE. The draft regulation has a 60-day public comment period.


The proposed regulation isn’t perfect, of course. Below are the strengths and needed changes, based on SAVE’s initial analysis. SAVE discourages persons from sending these comments verbatim to the Department of Education. Instead, persons should submit comments based on their own experiences and perspectives.


1. Notice Requirements

– must publish and provide notice of their grievance procedures including how to report and how to respond to complaint.

– must provide notice of allegations to both parties including potential sanctions, standard of evidence, right to appeal, range of supportive measures, and date/time/location of hearings

– must inform parties they have right to request and inspect evidence

– must provide written decision detailing violation, procedural steps taken, findings of fact, sanctions imposed, and right to appeal. Must be provided to both parties simultaneously

2. Definitions

– provides a more narrow definition of sexual harassment:

  1. Supreme Court’s Davis v. Monroe definition
  2. Quid pro quo harassment
  3. Any offense that meets the FBI definition of rape, fondling, incest, or statutory rape (34 CFR 668.46(a))

– schools are only obligated if they have actual knowledge. A school only has actual knowledge if allegations are made to a Title IX coordinator or any school official who has power to institute corrective measures

3. Equal Rights

– supportive measures can now be offered to both parties

– a school’s treatment of either party in response to a complaint can constitute sex discrimination

4. Grievance Procedures

– equitable resolution for respondent must include due process before any disciplinary sanctions are imposed

– requires objective evaluation of all relevant evidence including both inculpatory and exculpatory evidence

– credibility determinations cannot be based on person’s status as complainant, respondent, or witness

– must be presumption of innocence until finding of guilt

– burden of proof is on school and not parties

– right to cross-examine through an advisor

– if party does not have advisor present, school must provide one who is aligned with the party

– informal resolutions are allowed at any time prior to determination

– school must maintain and provide record of investigation for 3 years

5. Conflict of Interest

– any investigator, coordinator, or decision-maker cannot have a conflict of interest against complainant or respondent

– training materials cannot rely on sex stereotypes and must promote impartial investigations

– decision-maker cannot be same person as the Title IX coordinators or investigators

6. Standard of Evidence

– same standard of evidence must be used for both students and faculty/employees

– preponderance of evidence can only be used if the school uses that standard for conduct code violations that do not involve sexual harassment but carry same sanction

Negatives — Changes that Need to be Made

1. Initiation of Grievance Procedure

– when school has actual knowledge of multiple reports against same respondent, the Title IX coordinator must file a complaint

2. Standard of Evidence

– may choose between preponderance of evidence or clear and convincing standard

3. Appeals

– school is not required to provide right to appeal

– if right to appeal is provided, school must allow both parties to appeal

4. Knowingly false accusations and false statements

– provision that addresses false accusations and false statements