Final Title IX Regulations

On May 6, 2020, the U.S. Department of Education released the long-awaited final regulations regarding the procedures for colleges to use in handling sexual-harassment complaints. The deadline for compliance is August 14, 2020. Since the regulations were issued during the COVID-19 crisis, as of now, colleges and universities should expect to achieve compliance by the deadline and not count on any extension of time because of the crisis.

The most significant changes are as follows:

• Colleges now have the choice of whether to mandate that all employees report any known instance of sexual harassment to the Title IX office or to elect to have some employees be confidential resources for students to discuss sexual harassment without mandatory reporting to the Title IX office.

• The definition of sexual harassment for Title IX has been narrowed. It is broken down into three categories: (i) any instance of quid pro quo harassment by a school’s employee; (ii) any unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person access to the school’s education program or activity; or (iii) any instance of sexual assault (as defined in the Clery Act[1]), dating violence, domestic violence, or stalking as defined in the Violence Against Women Act.[2]

• The scope of sexual harassment claims that are subject to Title IX has also been narrowed. Generally, Title IX governs a college’s response to alleged sexual harassment if it occurs “in the school’s education program or activity, against a person in the United States.” This, therefore, excludes allegations of sexual harassment that occur in off-campus housing or during a study abroad program. However, this definition does include “any building owned or controlled by a student organization that is officially recognized by a postsecondary institution (such as a fraternity or sorority house).”

• The regulations require additional disclosures identifying the employee who is responsible for receiving Title IX complaints, referred to as the “Title IX Coordinator.” In addition to notifying students and employees of the Title IX Coordinator’s contact information, colleges will need to notify applicants (both for admission and employment), and also must have the contact information prominently displayed on their websites.

• The standard for a college’s mandatory response to sexual harassment complaints is as follows: “schools must respond promptly to Title IX sexual harassment in a manner that is not deliberately indifferent, which means a response that is not clearly unreasonable in light of the known circumstances.” Colleges additionally must (1) offer supportive measures to the complainant; (2) promptly contact the complainant confidentially to discuss the available supportive measurer and explain the process of filing a formal complaint; (3) follow a grievance process before imposing any discipline against a respondent; and (4) must not restrict rights protected under the U.S. Constitution, including the First Amendment, Fifth Amendment, and Fourteenth Amendment.

• Colleges will be required to hold live hearings where the parties may cross-examine each other. Each party has the right to retain their own advisor in this process who would essentially play the role of a lawyer, but the advisor need not be a lawyer. If a party has not retained their own advisor, the college must provide, without charge, an advisor of the school’s choice, who need not be a lawyer.

• Colleges will now have the option to choose between two burden-of-proof standards: (1) preponderance of the evidence; or (2) clear and convincing evidence. Once a college chooses a standard, it must be applied uniformly to all complaints of sexual harassment.

• In addition to the initial investigation and hearing process, colleges must offer both parties an appeal from the final determination on the following bases: procedural irregularity that affected the outcome, newly discovered evidence, and/or a conflict of interest or bias on the part of the Title IX personnel that affected the outcome. A school may choose to offer an appeal equally to both parties on additional bases.

• In its discretion, a school may offer and facilitate informal resolutions similar to mediation or restorative justice to which any party may withdraw prior to its conclusion. Both parties must give voluntary, informed, written consent to an informal resolution. Schools may not require as a condition of enrollment that parties waive the right to a formal investigation, and schools may not offer or facilitate information resolution where the respondent is a school employee.

There have been two significant points of contention regarding these regulations. First, there is concern about the imminent deadline for compliance. On March 24, 2020, the American Council on Education (“ACE”), joined by over thirty other higher education associations, wrote a public letter to Secretary of Education Betsy DeVos stating that, in light of the COVID-19 pandemic, “colleges and universities should not be asked to divert precious resources away from more critical efforts in order to implement regulations unrelated to this extraordinary crisis.”Secretary DeVos, in response to criticism regarding the imminent deadline, said, “civil rights really can’t wait.”[3]

Second, opponents fear the regulations requiring complainants to go through a more rigorous reporting process and courtroom-like procedures will result in overly litigious investigations and may dissuade victims of sexual harassment from filing a complaint, particularly due to the element of cross examination. At the same time, the regulations were issued in part to address the concern that those accused of sexual harassment did not have a sufficient opportunity to defend themselves against false accusations. On this point, Secretary DeVos said, “cross examination is an important part of ensuring truth is found[.] Our rule is very sensitive to not requiring students to face each other. In fact it specifically prohibits that. But it’s an important part of ensuring that justice is ultimately served.”[4]

Overall, there are substantial changes to a college’s obligations in response to allegations of sexual harassment and a short time frame to implement the changes. As short as the deadline may seem, colleges should not depend on an extension of time as it clearly reflects a decision made by the Department of Education in light of the COVID-19 crisis. This list is merely a summary intended to put colleges on notice of the most significant changes they will be facing. A more exhaustive analysis of the new regulations will be required to ensure full compliance.

[1]The Clery Act (20 U.S.C.§ 1092(f) with implementing regulations at 34 C.F.R. 668.46), was signed into law by President George H.W. Bush in 1990 as the Crime Awareness and Campus Security Act of 1990. The Act was renamed the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act in 1998, in memory of Clery, who was raped and murdered in her campus dorm in 1986.

[2]The Violence Against Women Act of 1994 (“VAWA”) was a United States federal law signed as Pub. L. 103–322 by President Clinton on September 13, 1994.As a result of the United States federal government shutdown of 2018–2019, the VAWA expired on December 21, 2018. It was temporarily reinstated via a short-term spending bill on January 25, 2019, but expired again on February 15, 2019. The House of Representatives passed the Violence Against Women Reauthorization Act of 2019, but the bill stalled in the Senate.

[3] NPR - Federal Rules Give More Protection To Students Accused Of Sexual Assault.

[4] Id.