During a time when students and educational institutions are struggling to effectively conclude the spring semester through various distance-learning platforms due to the COVID-19 pandemic, the U.S. Department of Education released the new Title IX Regulations (“Final Rule”). The Final Rule, released on May 6, 2020 with an effective date of August 14, 2020, spans over 2,000 pages and seeks to balance the rights of the institutions, the complainant, and the respondent.
In announcing the Final Rule, U.S. Secretary of Education Betsy DeVos stated, “[t]his new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process. We can and must continue to fight sexual misconduct in our nation’s schools, and this rule makes certain that the fight continues.”
Both detailed and wide ranging, the Final Rule will require careful parsing by institutions to ensure compliance with all of its mandates, and implementation by the effective date will present a significant challenge as schools continue to grapple with and adapt to the changing educational landscape caused by COVID-19.
While the regulations contain a great deal of important information for postsecondary educational institutions as well as elementary and secondary schools, the following noteworthy key provisions focus on the immediate impact on college and university campus sexual harassment proceedings:
Definition of Sexual Harassment
Most notably, the new regulations redefine sexual harassment under Title IX to include the following three categories:
- Quid Pro Quo Harassment—instances where a school employee conditions education benefits on participation in unwelcome sexual conduct; or
- Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denied a person equal access to the school’s education program or activity; or
- Sexual assault, as defined in the Cleary Act, 20 U.S.C. § 1092(f), dating violence or stalking as defined in the Violence Against Women Act, 34 U.S.C. § 12291(a)).
In redefining sexual harassment, the Final Rule narrows the scope by requiring that unwelcome conduct be severe and pervasive and objectively offensive such that it effectively denies an individual access to a school’s education program or activity. The Final Rule simultaneously broadens the scope of covered actions to now include dating violence and require schools to offer options such as dorm room reassignments or no-contact orders.
The Final Rule also reshapes institutions’ figurative geographic reach to encompass “all of a school’s education programs or activities,” both on and off campus. With respect to complaints involving off-campus actions, the alleged sexual misconduct must have taken place during a school-sanctioned activity, building, or event in which the institution has “substantial control.” In this way, the Final Rule removes responsibility for acts that occur during activities and in areas not affiliated with the school, such as off-campus apartments.
Likewise, under the Final Rule, schools are not responsible for addressing conduct that takes place in study abroad programs.
Under the Final Rule, schools must act when they have actual knowledge of a complaint of sexual misconduct. Actual knowledge triggering the duty to respond exists when an individual provides notice to a school’s Title IX coordinator or “any official . . . who has authority to institute corrective measures on behalf of the school.” Institutions may voluntarily designate coaches and athletics department’s personnel as “officials with authority.” Prior guidance required schools to act upon constructive notice of allegations of sexual misconduct.
The U.S. Department of Education’s Office for Civil Rights (OCR) will now use a “deliberate indifference” standard in assessing allegations that an Institution mishandled a complaint of sexual harassment. Prior guidance issued in the withdrawn 2011 Dear Colleague Letter applied a strict liability standard of review when assessing whether an Institution mishandled a complaint of sexual harassment. In response to complaints of sexual harassment, under the Final Rule, Institutions are required to promptly: offer supportive measures to every complainant (i.e., an individual who is alleged to be the victim of sexual harassment); refrain from imposing disciplinary sanctions on a respondent without first following a prescribed grievance process; investigate every formal complaint filed by a complainant or signed by a Title IX Coordinator; and effectively implement remedies designed to restore or preserve a complainant’s equal educational access when a respondent is found responsible for sexual harassment.
The Final Rule requires an institution to offer supportive measures for the purpose of creating an equal access to education. Supportive measures are defined as “non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, [and] without fee or charge.” Supportive measures include a range of services, such as counseling, extensions of deadlines, modifications of work or class schedules, campus escort services, changes in house location, increased security or monitoring of parts of campus, and mutual restrictions on contact between individuals. The school is required to offer these services to the alleged complainant as well as to the person accused of sexual harassment, regardless of whether a formal complaint is filed.
Under the Final Rule, schools need only investigate formal complaints filed by a complainant or by a Title IX Coordinator. A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail (or electronic submission, such as an e-mail or use of an online portal provided by the school for the purpose of accepting formal complaints). Schools remain free to designate additional methods for filing a formal complaint. If the alleged conduct does not fall under Title IX, a school may address the allegations under the school’s own code of conduct and provide supportive measures.
Once a formal complaint has been filed, the Final Rule requires the school to conduct an investigation that includes the following elements:
- Schools must not restrict the ability of the parties to discuss the allegations or gather evidence;
- Schools must send the parties, and their advisors, 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;
- Schools must send the parties, and their advisors, an investigative report that fairly summarizes relevant evidence, in electronic format or hard copy, within at least 10 days for the parties to respond;
- If a school dismisses allegations of conduct that did not meet the Final Rule’s definition of sexual harassment or did not occur in a school’s education program or involve a person in the U.S., it remains free to address the conduct under its code of conduct and other policies.
- Schools may dismiss a formal complaint or allegations therein if the complainant informs the Title IX Coordinator in writing that the complainant desires to withdraw the formal complaint or allegations therein, if the respondent is no longer enrolled or employed by the school, or if specific circumstances prevent the school from gathering sufficient evidence to reach a determination;
- Schools must give the parties written notice of a dismissal and the reasons for the dismissal; and
- Schools may consolidate formal complaints where the allegations arise out of the same facts.
Notably, the assigned Title IX investigator can no longer serve as adjudicator under the Final Rule.
Due Process Protections
The Final Rule seeks to ensure that all parties receive fundamental due process rights and guarantees the presumption of innocence to the respondent. To that end, the institution must provide a live hearing and an opportunity for cross-examination, select a standard of proof to apply equally to all proceedings, and provide both parties with an equal opportunity to appeal a determination.
- Live-hearings & Cross-examination: Postsecondary educational institutions must hold a recorded, live hearing where the parties’ advisors are permitted to present evidence supporting their version of events. If requested by a party, the hearing must be held in separate rooms using the necessary technology in order to proceed. While the individual parties are not allowed to personally cross-examine anyone, the advisors must be allowed to cross-examine other parties and witnesses. Cross-examination includes predetermined relevant questions that may challenge the other parties’ denials, allegations, and provides all participants the opportunity to observe the demeanor of a witness for purposes of credibility. Critically, statements made by parties and not cross-examined as part of a Title IX investigation may not be used as evidence. Additionally, if a party does not have an advisor present, the school must provide an advisor of the school’s choice without fee or charge to that party.
- Standard of Proof: The educational institution is required to select the standard of evidence to be used during the school’s grievance process to determine responsibility: the preponderance of the evidence standard (the threshold under prior OCR guidance) or the clear and convincing evidence standard. The same standard must be applied to all formal complaints of sexual harassment whether the respondent is a student or an employee, including faculty members.
- Right to Appeals: Educational institutions must offer both parties an opportunity to appeal any decision regarding the ultimate finding of responsibility and from a school’s dismissal of discrete allegations or a complaint. An appeal may be based on: (1) procedural irregularities, (2) newly discovered evidence that was not reasonably available at the time of the investigation decision making, or (3) conflicts of interest or bias by the Title IX coordinator, investigator(s) or decision-maker(s), to the extent any of these bases affected the outcome of the investigation. Institutions remain free to supplement the bases for an appeal equally for complainant and respondent. Importantly, the person who decides the appeal cannot be the original Title IX Investigator or the person who made the determination regarding responsibility.
Furthermore, “to ensure that the determination regarding responsibility is reached in a manner that does not require violation of [the Fifth Amendment right against self-incrimination] … the final regulations  provide[s] that a decision-maker cannot draw any inferences about the determination regarding responsibility based on a party’s failure to appear at the hearing or answer cross-examination or other questions.” This revision allows a respondent to participate in the campus proceeding without fear that asserting his/her right to remain silent will affect the final determination.
The Final Rule now provides similar protections in campus proceedings to those in the court of law—the right to an advisor, the right to remain silent, and the right to confront witnesses.
A school can offer an informal resolution in appropriate cases, with the exception of when the respondent is an employee of the school. This process may only be attempted if each party enters the process completely voluntarily, with informed written consent; it cannot be forced, threatened, or required as a condition of enrollment or employment.
The Final Rule requires that schools keep the following records for seven years:
- Records of a school’s investigation including any determination regarding responsibility;
- Records of any appeals and materials associated with an appeal;
- Records of all informal resolution processes, including notices sent to parties preceding informal resolution;
- All materials used to train Title IX investigators, Title IX coordinators, decision makers and informational resolution facilitators; and
- Records of supportive measures taken in response to a report or formal complaint of sexual harassment, and, must document the basis for its conclusion that its response was not deliberately indifferent.
The Final Rule provides clear options and a uniform, legally sound framework for which the institutions, the complainant, and the respondent can rely upon. Although many institutions nationwide are managing the daily challenges related to COVID-19, compliance with the Final Rule must be complete by August 14, 2020, i.e., institutions must review and revise their policies and procedures for addressing sexual assault and harassment, as well as their training materials for students, staff, and other campus personnel by that date.
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