Nation’s Criminal Defense Bar Welcomes New Title IX Regulations, Calls the Restoration of Due Process on Campus ‘Essential’

Washington, DC (Aug. 12, 2020) – New regulations released in May relating to the implementation of Title IX of the Education Amendments of 1972 are set to take effect this Friday, August 14, 2020. The National Association of Criminal Defense Lawyers (NACDL) has long been concerned about the erosion of due process in campus misconduct proceedings as well as the intersection between those proceedings and the criminal justice system. Indeed, in January of 2019, during the notice and comment period, NACDL expressed those concerns in a letter to Secretary Betsy DeVos.

In that letter, NACDL explained that fundamentally fair standards benefit all parties, not only complainants or respondents. The Association stressed the importance of:

• Inclusion of the presumption of innocence in the regulations;
• Extending the 60-day timeframe for a campus case when there is a pending criminal investigation;
• More robust notice of the allegations against the respondent; and  
• Live hearings with cross-examination.

The new regulations ultimately adopted all the due process principles that NACDL argued were essential.

"The restoration of due process on campus is essential," said NACDL President Nina J. Ginsberg. "America’s colleges and universities are where millions of young adults are not just learning from textbooks and lectures -- they are also becoming civically engaged members of a community, of a social order. We cannot expect young adult students to understand and defend core constitutional principles once they leave campus if some of those core principles that apply in America’s justice system are honored only in the breach by the educational institutions presiding over student misconduct proceedings."

"Due process, the presumption of innocence, notice, an opportunity to be heard, the right to confront and cross-examine one’s accuser and any witnesses – these are not controversial principles, these are core principles," said NACDL Title IX Committee Chair Kristina Supler. "Everyone involved in campus misconduct proceedings should be treated with dignity and respect – and that includes the accused."

Additional highlights of the new regulations include, but are not limited to, the following:

• The proceedings must engage in an objective evaluation of both inculpatory and exculpatory evidence;
• The definition of sexual harassment is changed to include a requirement that the unwelcome conduct is “severe, persistent, and objectively offensive”; and
• No information protected by privilege (both medical and attorney/client) can be used during an investigation unless the person holding the privilege waives it.

Contacts

Ivan Dominguez, NACDL Senior Director of Public Affairs and Communications, (202) 465-7662 or idominguez@nacdl.org

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.