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Department of Education Proposes New Rules to Govern Title IX Compliance

November 16, 2018

The Department of Education has issued a Notice of Proposed Rule Making to amend the federal regulations governing Title IX compliance. The proposed rules would replace prior guidance and represent a radically different approach than that taken in the abandoned 2014 Dear Colleague Letter and related guidance. Because the most substantive changes affect the investigation and complaint resolution process, institutions will need to begin thinking about how to adapt their processes in anticipation of the rules becoming final.

The key changes in the proposal, issued on Friday, November 16, 2018, are:

Taken together, these changes will require institutions to follow a judicial process akin to a criminal court proceeding and much more formalized under than under the prior guidance.  The requirement of cross examination, recently imposed on public institutions by the Sixth Circuit Court of Appeals, will likely present the most challenges in implementation. Questions that need to be considered include how much control the hearing officer may have to restrict questioning and whether the advisor can be required to demonstrate competence or have training in advocacy skills. 

Other significant changes include:

The proposed regulations are now subject to a 60-day public comment period, at the conclusion of which the department may make modifications or simply place the proposed regulations into effect. 

Because the regulations represent a sea change from prior guidance, virtually all institutions should begin the process of reviewing their current policies and procedures and considering how they can implement the required changes consistently with other campus policies and mission values. Please contact the authors or your Miller Canfield attorney to discuss this issue further.