Title IX changes merit fair review

Over the last six months, discussion of the proposed changes to Title IX regulations has raised concerns for colleges and universities across the country. While they may be imperfect, the regulations propose a fairer system with clear standards that, when viewed objectively, can benefit all and ensure the integrity of the results in Title IX proceedings, regardless of who prevails.

Many critics argue that the regulations have narrowed the definition of sexual harassment by defining it as “severe, pervasive and objectively offensive.”

Yet, this definition is grounded in U.S. Supreme Court precedent. Requiring the right to cross-examination — a right that has developed over centuries of British and American jurisprudence — protects both respondents and complainants. Third parties, not the students themselves, will be asking the questions. Testimony may take place in separate rooms while still allowing schools to assess the credibility of both parties. The argument that allowing cross-examination and live hearings will be costly for colleges and universities sends the message that due process is “too expensive” for schools to administer. Cost-effectiveness shouldn’t be the only incentive for protecting the integrity of the Title IX process.

The proposed rules do not aim to discourage students from coming forward; they stand to give complainants more control over the process than they ever had before. Complainants may decide what assistance they need from the school, i.e. formal complaint, supportive measures or mediation. Now the notice and comment period has ended, but with more than 104,000 comments, it will be interesting to see what, if any, changes are made to the proposed regulations. Kimberly C. Lau

New York City Partner, chair of Title Ix/college discipline practice, Warshaw Burstein, LLP