New Title IX Regulations Impose Procedural Protections for Some Students Accused of Sexual Misconduct, But Allow Schools Wide Discretion in Dealing with Other Situations

The new Title IX regulations from the Department of Education (summarized by my colleague here) promise significant procedural protections for students accused of sexual misconduct, and require that all potential victims of sexual harassment be offered supportive services at a minimum. Among other things, the regulations mandate that, in response to a “formal complaint” of “sexual harassment,” a university give an accused student notice of the allegations and sufficient time to prepare for any meetings, an opportunity to gather and present evidence to an unbiased investigator who must presume the accused student’s innocence, and a live hearing at which the accused student’s attorney or other advisor can cross-examine the complainant and other witnesses, among other requirements.

However, the regulations narrow the scope of Title IX’s applicability to sexual harassment significantly compared to how many institutions currently apply it. Allegations of sexual assaults off campus or outside the country, sexual harassment where the complainant is not affiliated with the accused student’s university, and acts that do not meet the stringent definition of sexual harassment in the regulations are among various situations that are left out of the procedures required by the regulations. As to these allegations, universities seem to have a freer hand, subject to the requirements of other federal and state laws.

Specifically, the regulations reject the course many federal courts have taken to apply workplace standards for sexual harassment under Title VII to the student context under Title IX, and instead define sexual harassment as 1) a university employee seeking an unwanted sexual quid-pro-quo; 2) sexual assault, dating violence, domestic violence, or stalking, as defined in the Clery Act or Violence Against Women Act; or 3) unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that a reasonable person would determine it effectively denies a person equal access to the university’s educational program or activity. Under Title VII, workplace conduct need be only severe or pervasive in order to qualify as sexual harassment. Previous guidance from the Department of Education had also applied a broader definition of sexual harassment.

Moreover, the regulations specify that a “formal complaint” must be submitted by a complainant who wants the college to investigate possible sexual harassment or must be signed by the Title IX Coordinator, and that at the time of filing, the complainant must be “participating in or attempting to participate in” the university’s education programs or activities. That means that former students who have graduated or left cannot file formal complaints. Nor, it seems, can complainants from other institutions in many circumstances. In turn, “education programs or activities” is defined to include “locations, events, or circumstances over which the [institution] exercised substantial control over both the respondent and the context in which the sexual harassment occurs,” as well as buildings used by recognized student organization. So alleged sexual assaults in dorms and fraternity or sorority houses are more likely to be included, but off-campus sexual assaults may be excluded. In fact, the university is required to dismiss sexual harassment complaints under Title IX that did not occur “in [its] education program or activity.”

However, universities are permitted to apply other sections of their codes of conduct to allegations that fall outside the scope of the regulations. Many schools currently have codes of conduct that sweep much more broadly than these new regulations – with provisions that prohibit any kind of unwanted conduct of a sexual nature, and apply to locations both on and off campus, or even internationally. Although universities might have to change the terminology in their handbooks to call some of that conduct something other than “sexual harassment,” they could still punish students found to have committed sexual misconduct under circumstances that the Department of Education would not consider “sexual harassment.” If they did, some of those cases (such as sexual assault, domestic violence, and stalking) would continue to be subject to the Clery Act regulations that allow a student accused of such actions to have an attorney or other advisor of his or her choice during disciplinary proceedings, and provide for timely access to evidence, among other limited procedural requirements. Other disciplinary matters that fall outside both the Title IX and Clery Act regulations would be subject to any requirements of state law; for instance, Massachusetts courts have required colleges to substantially follow established policies and provide “basic fairness,” while providing few specifics on what “basic fairness” means.

What universities will do with this patchwork landscape remains to be seen. They may establish one set of procedures, consistent with the requirements of the Title IX regulations, to adjudicate both Title IX claims and sexual misconduct allegations that are not within the scope of the Title IX regulations. That has been the general approach taken in response to the Clery Act regulations, as most schools have allowed a student’s attorney to act as an advisor and provided access to evidence even when the Clery Act did not apply. But these regulations require major changes to how schools adjudicate these disputes, involving both investigators and live hearings whereas many schools had used only a single investigator or some substitute for a live hearing. Schools wanting to limit their obligations to apply new and more stringent processes (or to prevent complainants from having to submit to cross-examination) might look closely at the boundaries of the regulations and establish two or even three different sets of procedures: one with a live hearing for alleged Title IX violations, one with a single investigator and limited transparency for alleged Clery offenses, and a third with minimal transparency for everything else. This would, of course, end up being very confusing, particularly if there were allegations in multiple categories – such as an alleged sexual assault in a dorm, another in an off-campus apartment, and a pattern of severe but not pervasive sexual comments. But such a separated system seems to be permitted under the new regulations.

By establishing categorical limits on the reach of the Title IX regulations, the Department of Education missed an opportunity to craft a comprehensive framework for institutions’ responses to sexual misconduct. In the coming months, we will see whether schools effectively circumvent procedural protections by choosing to reframe serious sexual misconduct allegations as less-serious conduct violations not subject to Title IX, an outcome which would do a disservice to both complainants, whose serious harms would be trivialized, and respondents, who deserve a fair process for determining facts and responsibility.

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. Links to our other posts in this series 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.