Starting August of 2020, the new Title IX regulations produced under President Trump became effective.While schools may have lectures explaining these rules, sometimes they do it in a way that is difficult to understand. These regulations affect all students and staff at schools regardless of age, meaning that the way in which the Title IX office conducts its hearings and its sentencing is equivalent for someone who is in the second grade and someone who is a senior in college.
Change in Definition
The new definition is very strict and does not include any verbal harassment nor anything online. Trump and his administration believed that the previous definition was a violation of the First Amendment right to freedom of speech as it limited what people could say without action being taken against them. This new definition is dangerous as it limits the number of cases that can be considered sexual harassment as well as stipulating the harassment must happen on campus property. If a possible sexual harassment case does not fall within the scope of this definition or does not happen on campus, the Title IX office and the school cannot take any further action.
Change in Standard of Evidence
Previously, the standard of evidence had to meet a level of preponderance, the lowest standard of proof. This means that at least half of what the accuser is saying must be proven true. The new standard of evidence is a significantly higher standard, making it more difficult for the accuser. The new standard is that evidence must be “clear and convincing”, meaning the evidence must show that what the accuser is saying happened must be highly and substantially more likely to be true. This new standard makes it very difficult for the accuser to get justice as well as making it more stressful.
Title IX Hearings
The hearing will be live, include attorneys, and will include cross-examination. The new regulations make the Title IX hearing eerily similar to criminal court, with a similar intensity. A live hearing can be beneficial as it gets the hearing over within a timely manner, however, it can be traumatic for some accusers who just underwent the large trauma of sexual harassment. Attorneys can only be included in the hearing if either part hires one themselves, otherwise, the party must represent themselves. This means that the school cannot provide representation for either party if the parties are unable to do so themselves, putting families who are well off in a better position than those who do not have as much disposable income.
The attorney can also represent the party during the cross-examination. Cross-examination for anyone can be traumatic, scary, and overwhelming regardless of the subject matter of the hearing. Due to the sensitive nature of the Title IX hearing, being cross-examined by a legal professional could re-traumatize and victim-blame the accuser, making it more difficult for them to get justice for the crime committed against them. For this reason, cross-examination has historically been left out of Title IX hearings. There is still the rule that throughout the hearing, neither party is in direct contact or vision of each other. This is to keep both parties in a safe space, mindset, and level-headed.