Today the U.S. Department of Education released its long-awaited regulations implementing Title IX. The regulations require a complete overhaul of how schools currently handle allegations of sexual harassment and sexual assault, and dramatically limit schools’ responsibilities to address those claims.
By way of background, in 2011 the Obama administration issued a Dear Colleague Letter that provided guidance to schools (K-12 and post-secondary) on how to address sexual harassment. That letter was not binding law, but because the Department of Education could withhold federal funding from any school that did not comply with it, schools revamped their processes for addressing complaints of sexual harassment and sexual assault to meet the standards set out in the letter. After Donald Trump took office, the Department of Education rescinded that guidance, and in 2018 issued proposed regulations that were published for public comment. Today, the final version of those regulations, and commentary addressing the public comments, was released.
What follows is a brief overview of some of the major provisions of the new regulations, which take effect August 14, 2020.
Under the new regulations, schools are required to formally investigate a much smaller number of complaints than they currently do. The new regulations specify that school grievance processes only apply to allegations of sex discrimination against a person in the United States, and formal complaints can only be made by people participating in or attempting to participate in the school’s education program. There is a narrow exception to this rule, which requires schools to respond to sexual harassment that occurs in “locations, events, or circumstances over which the school exercised substantial control over both the respondent and the context in which the sexual harassment occurs.” Under the new regulations, a student may not file a formal complaint against a student or faculty member at a school where he/she does not participate in an educational program.
A college or university is only required to respond to sexual harassment when it has actual knowledge (defined as notice to the Title IX Coordinator or an official who has authority to institute corrective measures on behalf of the school) of sexual harassment. For elementary or secondary schools, the notice can be to any employee of the school. The school must respond promptly but only in a way that is not deliberately indifferent, which is defined as “clearly unreasonable in light of known circumstances.” The deliberate indifference standard, which is one courts have used to determine when a school can be sued for money damages arising out of its failure to address sexual harassment, is a high one. A school’s response to sexual harassment does not have to eliminate that harassment, nor does it have to follow best practices for addressing sexual harassment. So long as the school’s response is not “clearly unreasonable” it now meets the legal requirement under Title IX.
Until today, federal regulations were almost entirely silent as to how schools should handle sexual misconduct complaints. The existing Title IX regulations require only that schools respond in a manner that is “prompt and equitable”; regulations under the Clery Act, another federal law, give a few broad requirements for disciplinary processes addressing sexual assault, dating violence, domestic violence, and stalking. The new Title IX regulations provide detailed requirements for school disciplinary processes addressing sexual harassment, including:
- Schools must conduct a threat assessment before removing a student from campus pending a decision in the case, and there must be a mechanism for the student to immediately challenge the removal;
- Investigators and Title IX coordinators cannot have a bias for or against complainants or respondents generally;
- Accused students are to be presumed innocent;
- The standard of evidence can be either “clear and convincing” or “preponderance of the evidence” but must be the same for all Title IX cases;
- Notices of allegations must include the identities of the people involved, the date and location of the incident, and a description of the conduct that forms the basis of the allegation (to the extent all of this information is known to the school);
- Schools may dismiss formal complaints if the complainant asks for it to be withdrawn, or if the respondent no longer is a student or employee at the school;
- Parties must have an equal opportunity to present witnesses, including expert witnesses;
- Parties have the right to review and inspect any evidence the school collects that is relevant to the allegations, even if the school does not rely on the evidence in coming to its decision;
- Parties must have the opportunity to review the evidence before any investigative report is finalized, and to respond in writing to the evidence;
- Postsecondary schools must hold a live hearing where the parties’ advisors (not the parties themselves) must be allowed to cross-examine all witnesses, including the opposing party, and the school cannot consider the statements of anyone who does not submit to questioning at the hearing;
- Schools must provide advisors to students who do not have them for the hearing, for the purpose of allowing that advisor to examine witnesses;
- Schools must record their hearings and allow the parties to access the recordings;
- There must be a written decision that makes findings of fact, draws conclusions that apply the school policies to the facts, and gives a rationale for the finding as to each allegation.
These new requirements will force colleges and universities, many of which do not offer live hearings at all, to dramatically revamp their processes for handling sexual misconduct allegations. You can find more detailed analysis of the regulations and answers to common questions at the following links:
- How do the new regulations fit in with existing federal and state requirements for addressing sexual misconduct?
- What standards of proof can schools use in disciplinary processes?
- How will the requirement of live hearings and cross-examination work?
- How will the inclusion of expert witnesses change Title IX adjudications?
- What is the impact of a narrower definition of “sexual harassment”?
This post is part of multi-part series by Zalkind Duncan & Bernstein’s Title IX team analyzing the significant revisions to the U.S. Department of Education’s Title IX regulations that were issued in May 2020 and are intended to take effect on August 14, 2020, which can be found here.
If you are involved in a Title IX proceeding at your school, college, or university, and would like to speak to one of our Title IX lawyers about your case, please contact us at (617) 742-6020.