The new rule is scheduled to take effect on August 14, 2020.

On May 19, 2020, the U.S. Department of Education issued its final rule on Title IX of the Education Amendments of 1972 regulations. These are the first comprehensive regulations issued under Title IX since 1975. The final rule, which applies to school districts, colleges and universities, including all institutions of higher education receiving Title IV funding, contains a number of significant changes, such as: a definition for sexual harassment, publication of Title IX materials, triggers for an institution’s legal obligation to respond and investigate, and a requirement that institutions conduct courtroomlike hearings.

The final regulations modify Title IX regulatory requirements regarding remedies the Department may impose on recipients for Title IX violations, the intersection between Title IX, constitutional protections, and other laws, the designation by each recipient of a Title IX coordinator to address sex discrimination including sexual harassment, the dissemination of a recipient’s nondiscrimination policy and contact information for a Title IX coordinator, the adoption by recipients of grievance procedures and a grievance process, how a recipient may claim a religious exemption and prohibition of retaliation for exercise of rights under Title IX.

In the preamble to the rule, the Department notes that the “final regulations leave recipients the flexibility to choose to follow best practices and recommendations contained in the Department’s guidance or, similarly, best practices and recommendations made by non-Department sources, such as Title IX consultancy firms, legal and social science scholars, victim advocacy organizations, civil libertarians and due process advocates, and other experts.” 85 Fed. Reg. 30026, 30030. With this initial flexibility, institutions have an obligation to strictly adhere to their published policies and procedures.

The new rule is scheduled to take effect on August 14, 2020.

Key Provisions of the Department of Education’s New Title IX Regulation

• Defines sexual harassment to include sexual assault, dating violence, domestic violence and stalking, as unlawful discrimination on the basis of sex.
• Provides a consistent, legally sound framework on which survivors, the accused and schools can rely.
• Requires schools to offer clear, accessible options for any person to report sexual harassment.
• Requires the school to offer survivors supportive measures, such as class or dorm reassignments or no-contact orders.
• Protects K-12 students by requiring elementary and secondary schools to respond promptly when any school employee has notice of sexual harassment.
• Holds colleges and universities responsible for off-campus sexual harassment at houses owned or under the control of school-sanctioned fraternities and sororities.
• Requires colleges and universities to provide students the right to written notice of allegations, the right to an adviser and the right to submit, cross-examine and challenge evidence at a live hearing.
• Shields survivors from having to come face to face with the accused during a hearing and from answering questions posed personally by the accused.
• Requires schools to select one of two standards of evidence, the preponderance of the evidence standard or the clear and convincing evidence standard—and to apply the selected standard evenly to proceedings for all students and employees, including faculty.
• Provides “rape shield” protections and ensures survivors are not required to divulge any medical, psychological or similar privileged records.
• Requires schools to offer an equal right of appeal for both parties to a Title IX proceeding.
• Gives schools flexibility to use technology to conduct Title IX investigations and hearings remotely.
• Protects students and faculty by prohibiting schools from using Title IX in a manner that deprives students and faculty of rights guaranteed by the First Amendment.

Defining Sexual Harassment

Title IX protects students’ rights to educational opportunities free from sex discrimination. While courts have previously interpreted Title IX to include sexual harassment as a form of sex discrimination, the newly published regulations establish in law that sexual harassment, including sexual assault, is unlawful sex discrimination. Section 34 CFR 106.30 considers the following forms of sexual harassment actionable under Title IX:

1. An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct (quid pro quo);
2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or
3. “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8) or “stalking” as defined in 34 U.S.C. 12291(a)(30).

In these final regulations, the Department retains reference to sexual assault under the Clery Act, and additionally incorporates the definitions of dating violence, domestic violence and stalking in the Clery Act as amended by the Violence Against Women Act. The final rule also provides definitions for “complainant,” “respondent,” formal complaint” and “supportive measures.”

Counseling Point

Institutions are advised to review and, if necessary, update policies and procedures to ensure compliance with any new definitions.

When and How an Institution Must Respond

The final rule relies on the Supreme Court’s Gebser v. Lago Vista Ind. School Dist., 524 U.S. 274 (1998) and Davis v. Monroe Cnty. Bd. of Ed., 526 U.S. 629 (1999) decisions to establish a three-part framework describing when a school’s response to sexual harassment constitutes the school itself committing discrimination. The three parts of this framework are: conditions that must exist to trigger a school’s response obligations (actionable sexual harassment); the school’s actual knowledge; and the deliberate indifference liability standard evaluating the sufficiency of the school’s response.

Under the final rule, only actual knowledge—notice to the Title IX coordinator or to an official with authority to institute corrective measures on the institution’s behalf—triggers an obligation to respond. In postsecondary institutions, notice to the Title IX coordinator or any official with authority conveys actual knowledge to the recipient. Section 34 CFR 106.44(a) clarifies that the alleged harassment must involve conduct that occurred within the institution’s own program or activity (location on versus off campus does not matter) and alleged harassment must have been perpetrated against a person in the United States (affecting study abroad programs and the like). Section 34 CFR 106.44(a)-(b) explains that institutions must treat all reports of sexual harassment seriously and respond promptly. “Deliberately indifferent” is defined as meaning that an institution is liable under Title IX if their response is “clearly unreasonable in light of the known circumstances.”

Counseling Point

The final rule also expands an institution’s obligations for publication of Title IX materials. Institutions will be required to post on their websites (or make available for the public to inspect) materials used to train Title IX personnel and prominently display contact information for the Title IX coordinator (name or title, office address, email address and telephone number).

Supporting Complainants

Under the final rule, the Title IX coordinator must contact the complainant (alleged victim) to discuss and offer supportive measures. The Title IX coordinator must consider the complainant’s wishes regarding supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain the process for filing a formal complaint. A Title IX coordinator must be available to intake both reports and formal complaints and to coordinate effective implementation of supportive measures.

Grievance Process

• The final rule requires schools to investigate and adjudicate formal complaints of sexual harassment using a grievance process that incorporates due process principles, treats all parties fairly and reaches reliable responsibility determinations.
• A school’s grievance process must give both parties written notice of the allegations, an equal opportunity to select an adviser of the party’s choice (who may be, but does not need to be, an attorney) and an equal opportunity to submit and review evidence throughout the investigation.
• Objective evaluation of all relevant evidence, avoiding credibility determinations based on a person’s status as a complainant, respondent or witness.
• Avoiding conflicts of interest or bias relating to Title IX personnel (Title IX coordinators, investigators, decision-makers and people who facilitate any informal resolution process).
• Training Title IX personnel on the definition of sexual harassment, the scope of the institution’s education program or activity, how to conduct an investigation and grievance process and how to serve impartially. Decision-makers and investigators must also receive training on relevant issues such as applying the rape shield.
• Protect parties’ privacy by requiring a party’s written consent before using the party’s medical, psychological or similar treatment records during a grievance process.
• Obtain the parties’ voluntary, written consent before using any kind of “informal resolution” process, such as mediation or restorative justice, and not use an informal process where an employee allegedly sexually harassed a student.
• Apply a presumption that the respondent is not responsible during the grievance process (often called a “presumption of innocence”), so that the school bears the burden of proof and the standard of evidence is applied correctly.
• Ensure the decision-maker is not the same person as the investigator or the Title IX coordinator (i.e., no “single investigator models”).
• For postsecondary institutions, hold a live hearing and allow cross-examination by party advisers (never by the parties personally); K-12 schools do not need to hold a hearing, but parties may submit written questions for the other parties and witnesses to answer.
• Protect all complainants from inappropriately being asked about prior sexual history (“rape shield” protections).
• Reasonably prompt time frames for conclusion of the grievance process, including appeals and informal resolutions.
• A description of the possible remedies (required to be provided to a complainant when a respondent is found responsible) and disciplinary sanctions.
• Selection of an evidentiary standard. The institution must utilize the preponderance of the evidence standard or the clear and convincing evidence standard and apply it consistently to all formal complaints (whether the respondent is a student or an employee).
• A description of the appeal procedures (if any).

Investigations

An institution must investigate, including gathering evidence, the allegations in any formal complaint. Written notice of the allegations must be sent to the complainant and respondent containing sufficient details to permit them to prepare for any interviews. Investigations must also:

• Provide equal opportunity for both parties to present witnesses and evidence.
• Not restrict the ability of the parties to discuss the allegations or gather further evidence.
• Allow the parties to be accompanied by an adviser of their choice.
• Give written notice of any event (interview, meeting or hearing).
• Send the parties and their advisers evidence directly related to the allegations, in electronic format or hard copy, with at least 10 days for the parties to inspect, review and respond to the evidence.
• Send the parties and their advisers an investigative report that fairly summarizes relevant evidence, in electronic format or hard copy, with at least 10 days for the parties to respond.

An institution must dismiss allegations of conduct that do not meet the final rule’s definition of sexual harassment or did not occur in the institution’s education program or activity against a person in the U.S. However, the institution is not precluded from addressing the conduct via the institution’s own code of conduct.

A formal complaint can also be dismissed if the complainant makes a written request, if the respondent is no longer enrolled or employed by the institution, or if specific circumstances prevent the institution from gathering sufficient evidence to reach a determination. A written notice of dismissal must be provided to the parties, outlining the reasons for dismissal.

Live Hearings and Cross-Examination

Nonpostsecondary Institutions (e.g., K-12 schools)

Nonpostsecondary institutions may, but need not, provide for a live hearing. With or without a hearing, the decision-maker (who is not the Title IX coordinator or investigator) must afford each party an opportunity to submit written relevant questions, provide each party with the answers and allow for limited follow-up questions from each party. The decision-maker must determine whether each question is relevant and provide a rationale to the party proposing the question as to why a question is being excluded. Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.

Postsecondary Institutions (e.g., Colleges and Universities)

Postsecondary institutions must provide for a live hearing with real-time cross-examination. The live hearings are conducted by a decision-maker who is not the Title IX coordinator or the investigator. The hearings may be conducted in-person or virtually at the institution’s discretion, and should be conducted in a manner giving consideration to factors such as preventing further trauma, accessibility for witnesses/parties, respecting court restraining orders, ameliorating administrative burdens, etc. If requested by a party, the institution must hold the live hearing in separate rooms utilizing technology to permit real-time audio and visual interactions with each other, the decision-maker and the witness. Parties are to be represented by advisers, who will ask questions of witnesses on behalf of the party—attorneys are permitted to serve as advisers, but advisers are not required to be attorneys. Parties are not permitted to cross-examine witnesses or other parties.

All questions must be relevant. The decision-maker must determine whether each question is relevant before a witness responds, and explain to the party’s adviser asking questions any decision to exclude irrelevant questions. Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.

The decision-maker cannot draw an inference about responsibility based on a party’s or witness’s absence from the live hearing. Similarly, a decision-maker cannot rely on statements by a party or witness who will not submit to cross-examination at the hearing. Hearsay statements are also not permitted.

Institutions must create an audio or audiovisual recording or transcript of any live hearing. Decision-makers must also receive training on any technology used at a live hearing. If the parties give informed, written consent, the recipient may facilitate an informal resolution of the complaint (without a live hearing). Regardless of the level of formality, the institution must maintain records documenting every Title IX investigation and determination.

Counseling Point

Institutions must develop processes and procedures to accommodate the requirement for live, in-person hearings. Training should be done to ensure the process is followed, irrelevant information is excluded, all safeguards are in place and technological capabilities are understood.

Determinations

The decision-maker must issue a written decision to all parties. The written decision must include the allegations potentially constituting sexual harassment, description of the procedural steps, findings of fact, conclusions, statement of result for each allegation and the procedures/bases for appeal.

Counseling Point

The decision-maker is required to address all of these issues and should follow this format. Templates may be helpful guides, but training should be given, particularly to help differentiate between findings of fact and conclusions, and how to support results with the findings. This may sound straightforward, but as law clerks or judges know, these issues often are conflated and can become confusing quickly.

Conclusion

The publication of the final rule is controversial for two reasons: 1) many organizations recommended that the Department delay issuance of the rule at a time when most institutions are operating remotely and may be unable to quickly adopt the necessary changes, and 2) a number of provisions of the rule, including the requirement for a live hearing have been hotly debated. We can expect that Democratic lawmakers will oppose the final rule and other groups will likely challenge it in court.

Despite the potential challenges to the rule, the rule is scheduled to go into effect on August 14, 2020.

Recommendations

• Institutions should review current Title IX policies and make any required modifications to ensure compliance.
• Institutions should conduct new training for Title IX personnel to specifically notify faculty, staff and personnel of the changes.

For More Information

If you have any questions about this Alert, please contact Katherine D. Brodie, Kristina Gill, Jessica S. High, Bryce Young, Tanvi Shah, any of the attorneys in the Higher Education Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.