New Title IX Campus Sex Offense Regulations Become Effective August 14 2020

I’ve written before about how the Obama-era regulations that defined and governed sex offenses under the federal law known as Title IX, were far too weighted against the accused.  “Title IX” prohibits discrimination on the basis of gender at colleges, universities and any educational institutions receiving federal funds.  The law is enforced by the U.S. Department of Education.

After an exhaustive review process overseen by US Education Secretary Betsy DeVos that spanned more than 2 ½ years and received more than 120,000 public comments, revisions and clarifications were made to the regulations  governing how colleges and universities respond to allegations of campus sexual assault and rape.  Colleges and universities across the U.S. must comply with the provisions of the new law by August 14.  If they don’t, they could lose tens of millions each in federal funds.

Some of the more important changes to the Title IX sex assault regulations include:

  • Clarifying what actions meet the definition of “sexual harassment”, as well as the geographic scope of where the alleged conduct occurred (i.e., On-campus? Off campus but near the campus?; Hundreds of miles away?)  The new regulations require the alleged conduct have take place within a University-related program or activity.


  • Requiring colleges & universities to conduct live hearings to adjudicate these cases before arriving at any final decisions. Previously, an accuser could simply submit written accusations, without even facing the accused. Arguments that requiring this change would create an ”intimidating setting” that would deter victims from reporting rape or sexual assault, were, in my opinion as a Boston sex crimes attorney, unsupported and entirely unfair to accused students.


  • Mandating that both accuser and the accused be represented by an “advisor” (presumably, an attorney skilled at the art of cross-examination). Previously, this wasn’t required, leading to proceedings that were essentially “kangaroo courts”, where accusers were allowed to make almost any accusations they wanted, without later cross-examination.  The new regulations prohibit student sexual conduct is “severe, pervasive, and objectively offensive,” vs. the previous “severe or pervasive” standard, which gave investigators far wider latitude in deciding whether a sexual offense occurred in the first place.  This resulted in a many students being found guilty of something so innocuous as a compliment.


  • Centrally, the new regulations provide schools the option of using a far more fair and balanced standard of evidence in evaluating campus sex assault allegations. Previously, Obama administration officials required colleges to apply a very low standard of evidence called a “preponderance of the evidence”. Under this low standard, an accuser could establish guilt against an accused by establishing merely that the alleged conduct “more probably than not” occurred. The new rules allow schools to apply either the “preponderance of the evidence” standard, or a more fair “clear and convincing” standard, which requires a higher burden of proof.


  • The previous regulations allowed colleges to investigate any students that were accused of creating a “hostile environment”, even if a flattering comment was offered to the accused. The new regulations appropriately clarify and narrow the scope of prohibited conduct.


Predictably, liberal colleges and universities across the country, as well as the American Council on Education (ACE) are doing all that they can to delay implantation of these new regulations.  Their reasoning?  “Allow Covid-19 to settle down, first”.   What these two subjects have to do with each other, I have no idea.

And that should tell you everything about how shallow the opposition to these fair and balanced changes to campus sexual assault and rape investigations, really are.

Schools receiving federal funds from the U.S. Department of Education are required to enforce these new regulations, with only one discretionary option:  Whether to apply the evidentiary standard of “clear and convincing evidence” in reaching adjudications, or a “preponderance of the evidence.”   While many observers hope this fairer standard will be adopted by schools, as a Massachusetts college campus discipline attorney, I don’t expect that many colleges and universities will adopt the “clear and convincing” standard.  The reason for this is because most colleges & universities, across the country, are administered by liberals and left-leaning administrators.  Like it or not, that’s the straight answer.

If you or a family member attending a Massachusetts college or university has been accused of campus sexual misconduct, it is important to retain an attorney or law firm that has a proven experience in successfully defending cases of college student sexual accusations.  This is a specialized area of law, so choose your attorney carefully.  If you’d like to speak with us by phone to discuss your situation, there is no charge.

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