These proposed regulations significantly limit the instances in which an institution would need to initiate or proceed with a Title IX investigation to remain compliant with Title IX, but do add new procedural requirements when such investigations are warranted.

On November 29, 2018, the U.S. Department of Education published proposed amendments to its Title IX regulations contained in 34 C.F.R. Part 109, starting the clock on the 60-day period for public comments, which are due on or before January 28, 2019.

Overview

Once final, the regulations would be the first set of Title IX regulations promulgated by the Department that directly address institutional obligations to respond to sexual harassment. Previous direction on this topic came in the form of subregulations that were not generally subject to notice and comment. Because of the formality of these proposed regulations and the time it would take to amend them once finalized through another notice and comment procedure, educational institutions subject to Title IX should submit questions, concerns or requests for clarification regarding the proposed rule now.

As recipients of federal funding, all institutions of higher education participating in Title IV programs are required to comply with Title IX by the terms of their Title IV Higher Education Act (HEA) program participation agreements. These rules would also apply to public elementary and secondary schools that receive federal funding. The Department has authority to subject an institution that does not meet Title IX requirements to a fine, suspension, limitation or termination action impacting its ability to participate in Title IV HEA programs. The Supreme Court has upheld a private right of action under Title IX, but most often Title IX issues are addressed through voluntary resolution agreements negotiated by the Department’s Office for Civil Rights that mandate changes in institutional policies and procedures.

These proposed regulations significantly limit the instances in which an institution would need to initiate or proceed with a Title IX investigation to remain compliant with Title IX, but do add new procedural requirements when such investigations are warranted, including a potentially costly and complex live hearing requirement. Further, since these regulations establish only minimum requirements for institutional obligations under Title IX, institutions must still comply with any more stringent sexual harassment or campus safety laws that exist under state law. Institutions also may decide to maintain existing or adopt new sexual harassment procedures that go beyond these regulations that outline the Department’s minimum requirements to meet Title IX obligations. Finally, nothing in the proposed rule alters an institution’s obligation to comply with the congressionally mandated campus safety regulations at 34 C.F.R. 668.46 (promulgated under the Clery Act/Violence Against Women Act statutes).

We urge all Title IV institutions to consider submitting public comments by the January 28, 2019, deadline on the proposed rule and to evaluate current policies and procedures for any desired changes. It is critically important that whether or not changes are made to institutional procedures, those procedures must be followed as presented to students and employees.

High Level Summary

What constitutes actionable sexual harassment?

The proposed rule significantly narrows actionable sexual harassment for which a school would be required to initiate or continue a formal Title IX grievance proceeding.

The Department clarifies the definition of sexual harassment that is actionable under Title IX to include:

1. A school employee conditioning an educational benefit or service upon a person’s participation in unwelcome sexual conduct (often called quid pro quo harassment);
2. Unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school’s education program or activity; or
3. Sexual assault as that crime is defined in the Clery Act regulations.

The rationale provided by the Department for this narrowing of actionable conduct is that previous Title IX guidance included “overly broad definitions of sexual harassment, lack of notice to parties, lack of consistency regarding both parties’ right to know the evidence relied on by the school investigator and right to cross-examine parties and witnesses, and adjudications reached by school administrators operating under a federal mandate to apply the lowest possible standard of evidence.” 83 FR at 61469.

When does alleged sexual harassment trigger an obligation to respond?

Actual knowledge is required.

In proposed Section 34 C.F.R. § 106.44(a), the Department describes what triggers a school’s obligation to respond and provides a framework for when a school’s obligation is triggered:

• First, the school itself must have actual knowledge of sexual harassment (or allegations). Under the proposed regulation, reporting sexual harassment to a Title IX Coordinator will always give the school actual knowledge. In K-12 schools, reporting student-on-student harassment to any teacher at that school gives the school actual knowledge.
• Second, the alleged harassment must involve conduct that occurred within the school’s own program or activity because Title IX by its own text applies to discrimination occurring “under any education program or activity” receiving federal funds.
• Third, the alleged harassment must have been perpetrated against a person “in the United States.”

What constitutes a formal complaint is also narrowly defined as a written document signed by the complainant or Title IX Coordinator alleging sexual harassment and requesting the initiation of the school’s Title IX grievance procedures. Under the proposed rules, a school would only be held liable if its response to a formal complaint is “deliberately indifferent” (meaning not clearly unreasonable in light of known circumstances). If a school properly follows its own grievance procedures or offers supportive measures to a complainant that does not wish to file a formal complaint, then the school has a “safe harbor” against a finding of deliberate indifference.

How must a school respond?

The formal Title IX grievance proceedings, the preinvestigation, investigation and hearing procedures schools are required to follow are arguably more complex and potentially costlier for schools to implement.

In proposed Section 34 CFR 106.44(a)-(b), the Department describes the requirements for how a school must respond. Schools must treat seriously all reports of sexual harassment (that meet the definition of harassment and the conditions of actual knowledge and jurisdiction discussed above), whether or not the complainant files a formal complaint. Schools must respond meaningfully to every report of sexual harassment and investigate every formal complaint. In cases in which no formal complaint is filed and thus the school does not have to investigate, the school must still respond and work with the complainant to offer supportive measures.

The formal grievance proceedings would generally comprise three stages: preinvestigation, investigation and a hearing, summarized below:

• Preinvestigation: Upon receiving a formal complaint, schools must provide all parties with a preinvestigation notice that includes details regarding the complaint, and time to prepare a response prior to any initial interview. Supportive measures, which could include academic course adjustments, counseling, no-contact orders, dorm room reassignments, leaves of absences and class schedule changes, can be taken at any time and can continue throughout and following the proceedings.
• Investigation: Schools must investigate all formal complaints of conduct that, if proven, would constitute sexual harassment as defined in the proposed rules. During the investigation, the school would not be permitted to restrict the ability of the parties to discuss the allegations with third parties or gather relevant evidence. All parties must have an opportunity to inspect and review all evidence collected during the investigation. The school must provide to each party for their review and written response an investigative report that fairly summarizes all relevant evidence at least 10 days prior to the hearing.
• Live hearing: A live hearing would be required for institutions of higher education and permitted but not required for elementary and secondary schools. At a live hearing, there must be an opportunity for cross-examination of parties and witnesses by each party’s adviser. If a party does not have his or her own adviser, the school must provide an adviser aligned with that party for purposes of conducting cross-examination. In the absence of a live hearing, each party must have an opportunity to provide written questions to witnesses and opposing parties.

Informal Resolution

In addition to the changes described above, the Department clarifies that a school may facilitate an informal resolution if it is fully voluntary. Proposed Section 34 CFR 106.45(b)(6) allows that a school may facilitate informal resolution of a sexual harassment complaint. This could include mediation, restorative justice or other models of alternative dispute resolution.

Record Retention

Regardless of whether there is a formal complaint, proposed Section 34 CFR 106.45(b)(7) requires schools to create and maintain records documenting every Title IX sexual harassment investigation and determination of responsibility, including any informal resolution or appeal, and all materials used to train their Title IX Coordinators, investigators and decision-makers. Schools must further keep records regarding the school’s response to every report of sexual harassment including documentation of supportive measures offered and implemented for the complainant.

Recommendations and Directed Questions

We recommend that institutions review the proposed regulations and provide comments identifying any concerns or burdens created by the proposed rule, including the live hearing obligation, which may create cost and unforeseen challenges for many institutions. Further, in the preamble to the proposed rule, the Department identified nine directed questions (beginning on page 21 of the proposed rule) on which it is specifically seeking comment from the public:

1. Applicability of the rule to elementary and secondary schools. The proposed rule would apply to all recipients of federal financial assistance, including institutions of higher education and elementary and secondary schools.

The directed questions to the proposed amendments state: “The Department is interested in whether there are parts of the proposed rule that will be unworkable at the elementary and secondary school level and whether there are other unique aspects of addressing sexual harassment at the elementary and secondary school level that the Department should consider.”

2. Applicability of provisions based on type of recipient or age of parties. Some aspects of the Department’s proposed regulations differ in applicability between institutions of higher education and elementary and secondary schools.

“We seek comment on whether our regulations should instead differentiate the applicability of these or other provisions on the basis of whether the complainant and respondent are 18 or over.”

3. Applicability of the rule to employees. Like the existing regulations, the proposed regulations would apply to sexual harassment by students, employees and third parties.

“The Department seeks the public’s perspective on whether there are any parts of the proposed rule that will prove unworkable in the context of sexual harassment by employees, and whether there are any unique circumstances that apply to processes involving employees that the Department should consider.”

4. Training. The proposed rule would require recipients to ensure that Title IX Coordinators, investigators and decision-makers receive training on the definition of sexual harassment, and on how to conduct an investigation and grievance process, including hearings, that protects the safety of students, ensures due process for all parties and promotes accountability.

“The Department is interested in seeking comments from the public as to whether this requirement is adequate.”

5. Individuals with disabilities. The proposed rule addresses the rights of students with disabilities under the IDEA, Section 504, and Title II of the ADA in the context of emergency removals (proposed Section 106.44(c)).

“The Department is interested in comments from the public as to whether the proposed rule adequately takes into account other issues related to the needs of students and employees with disabilities.”

6. Standard of Evidence. In Section 106.45(b)(4)(i), the Department proposes that the determination regarding responsibility be reached by applying either a preponderance of the evidence standard or the clear and convincing standard, and that the preponderance standard be used only if it is also used for conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanction.

“We seek comment on (1) whether it is desirable to require a uniform standard of evidence for all Title IX cases rather than leave the option to schools to choose a standard, and if so then what standard is most appropriate; and (2) if schools retain the option to select the standard they wish to apply, whether it is appropriate to require schools to use the same standard in Title IX cases that they apply to other cases in which a similar disciplinary sanction may be imposed.”

7. Potential clarification regarding “directly related to the allegations” language. Proposed Section 106.45(b)(3)(viii) requires recipients to provide each party with an equal opportunity to inspect and review any evidence directly related to the allegations obtained as part of the investigation, including the evidence upon which the recipient does not intend to rely in reaching a determination regarding responsibility, and provide each party with an equal opportunity to respond to that evidence prior to completion of the investigative report. The “directly related to the allegations” language stems from requirements in FERPA, 20 U.S. Code § 1232g(a)(4)(A)(i).

“We seek comment on whether or not to regulate further with regard to the phrase, ‘directly related to the allegations’ in this provision.”

8. Appropriate time period for record retention. In Section 106.45(b)(7), the Department proposes that a recipient must create, make available to the complainant and respondent, and maintain records for a period of three years.

“We seek comments on what the appropriate time period is for this record retention.”

9. Technology needed to grant requests for parties to be in separate rooms at live hearings. In Section 106.45(b)(3)(vii) the Department requires institutions of higher education to grant requests from parties to be in separate rooms at live hearings, with technology enabling the decision-maker and parties to see and hear each other simultaneously.

“We seek comments on the extent to which institutions already have and use technology that would enable the institution to fulfill this requirement without incurring new costs or whether institutions would likely incur new costs associated with this requirement.”

Comments

The Department invites public comments regarding the proposed regulations and directed questions (noted above). Comments may be submitted through the Federal eRulemaking Portal at regulations.gov or via U.S. mail, commercial delivery or hand delivery to:

Brittany Bull
U.S. Department of Education
400 Maryland Ave., SW., Room 6E310
Washington, DC 20202

Comments should include the Docket ID ED-2018-OPE-0064.

For Further Information

If you have any questions related to this Alert, preparing comments for submission, or about the proposed Title IX regulation, please contact Keith Zakarin, Katherine D. Brodie, Kristina Gill, Jessica S. High, Brandi A. Taylor, any of the attorneys in the Higher Education Practice 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.