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    November 2018

    Department of Education Releases Proposed Regulations Regarding Campus Sexual Misconduct

    The U.S. Department of Education (ED) has released proposed regulations related to Title IX that will govern how educational institutions conduct inquiries into allegations of sex discrimination, including sexual misconduct. The regulations are available for review in the Federal Register and public “notice and comment” period continues for 60 days after release. Once the comment period ends, ED will review submitted comments and publish the final regulations. Because of the expected high volume of comments and because court challenges are expected, it may be a considerable time before ED implements the regulations. 

    To help answer our members’ questions about the proposed regulations, United Educators (UE) will hold a webinar in early 2019. When the regulations become final, we’ll review and update our Title IX resources and will determine the best way to aid our members with compliance. 


    Highlights From the Draft Regulations

    Overall, the draft regulations emphasize that institutions must have a process that is equitable and fair to complainants and respondents. Prior studies of UE’s student sexual assault claims show that respondents file at least as many lawsuits as complainants, often alleging that the school’s disciplinary process was discriminatory or lacking in process protections. This has been particularly true in recent years, with a number of successful court challenges by respondents.

    Notable changes in the proposed regulations include:

    • Adopting the "actual knowledge" and "deliberate indifference” standard for finding an educational institution in violation of Title IX during administrative enforcement by the ED Office for Civil Rights (OCR). When an institution has actual knowledge of sexual harassment, it must respond in a way that is not deliberately indifferent. Deliberate indifference occurs when the response to sexual harassment is “clearly unreasonable in light of the known circumstances.” This is the legal standard endorsed by the Supreme Court for liability in Title IX lawsuits alleging sexual harassment, a high bar to overcome for students bringing a lawsuit. Adoption of this standard allows for a single, consistent standard for determining whether an institution’s response to a sexual harassment complaint was adequate.
    • Defining “sexual harassment” as:
      • Quid pro quo harassment by an employee
      • Hostile environment harassment or “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it denies a person access to the recipient’s education program or activity" 
      • Sexual assault as defined by the Clery Act (amended by the Violence Against Women Act, or VAWA, in 2013) and its regulations 

      This proposed regulation provides a narrowed uniform definition of sexual harassment for all institutions to use in their policies, but it is unclear if an institution may adopt a more expansive definition. Institutions should review their policy definitions and determine necessary changes when the final regulations are adopted. 

    • Requiring that all institutional grievance procedures include: 
      • Equitable treatment of complainants and respondents, by providing:
        • Remedies for the complainant when there is a finding of responsibility against the respondent
        • Due process for the respondent before disciplinary sanctions are imposed
        • An objective investigation of all relevant evidence, both inculpatory and exculpatory
        • A listing of all possible sanctions and a description of the standard of evidence to be used
        • The range of “supportive measures”—called “interim measures” in prior Title IX guidance—available to both parties to restore or preserve access to the institution’s education program or activity. These supportive measures cannot unreasonably burden the other party.
        • A presumption that the respondent is not responsible for the alleged conduct until a determination is made at the conclusion of the disciplinary process.

      Significantly, the proposed regulations preclude use of the “single investigator” model.

      The regulations require a live disciplinary hearing to determine the outcome. In addition, the decision-maker cannot be the same person as the investigator or Title IX coordinator. Moreover, schools should ensure their investigators do not pre-judge the respondent’s culpability before a full investigation and evaluation of the evidence. During this interim period, check your institution’s policies to see that they include a minimum process, for example, the opportunity to appeal a determination. Also, be aware of specific court decisions that may require a certain approach in your jurisdiction.

    • Providing written notice to the parties of the grievance procedures and allegations so that they have sufficient time to prepare a response before their initial interview. Details should include the identity of the parties (if known), the specific section of the disciplinary code alleged to be violated, and the date and location of the alleged incident. The notice must also include a statement that the respondent is presumed not responsible until a determination is made at the end of the disciplinary process. Schools cannot place limits on a student’s choice of a support person but may limit their role in the process, except allowing participation in cross-examination, discussed below. To comply, schools may wish to prepare a standard “notice form” to send to respondents when a complaint is made. Furthermore, if additional allegations are later made against the respondent, an updated notice must be provided.
    • Allowing the use of either the "preponderance of evidence" or "clear and convincing” evidentiary standard. However, an institution may only use the lower “preponderance of the evidence” standard if it uses that standard for conduct code violations not involving sexual harassment that carry the same maximum disciplinary sanction. Another proposed change requires institutions use the same evidentiary standard for student and faculty/staff discipline. In considering whether to make changes, institutions should review all policies that govern allegations of misconduct, including faculty- and employee-related policies.
    • Permitting informal resolution between the complainant and respondent prior to determining responsibility if both parties are provided certain notice and voluntarily consent to that process in writing. This proposed regulation allows parties to reach a resolution even while a formal investigation is underway. Additionally, complainants may have an opportunity to pursue complaints without a full investigation and outcome determination. This may require additional training for those involved in facilitating the resolution.
    • Placing the burden of gathering evidence on the institution, not the parties involved. This means:
      • Students do not bear the burden of ensuring an investigator has all relevant information 
      • Institutions may use evidence gathered by law enforcement
      • Institutions cannot prohibit parties from discussing the allegations with others on campus 
      • Institutions must provide the parties with an opportunity to inspect, review, and respond to evidence that is directly related to the allegations
      • Institutions must keep records of the investigation (including the determination, sanction, and remedies; any appeal; and information on resolution) for three years. 
    • Allowing respondents to cross-examine complainants during the live hearing, with limits:
      • No direct questioning by the parties. Questioning must be conducted by the respondent’s advisor of choice, including an attorney if that is the chosen advisor. If a party does not have an advisor, the institution must provide one.
      • Questions relating to a complainant’s prior sexual history are prohibited, unless those questions are offered to prove someone else was responsible for the alleged conduct, or if offered to prove consent.
      • The parties may be placed in separate rooms, with technology facilitating the cross-examination.
    • Requiring a written determination regarding responsibility, which includes the code of conduct section alleged to be violated, a description of the investigatory steps taken, and the findings of fact. In addition, the written determination must include conclusions regarding applying the policy to the facts, a statement with rationale detailing the result of each allegation with any imposed sanctions and remedies provided, and the bases and procedures for appeal. Institutions may wish to prepare a determination template if they do not have one. 

    UE Recommendations

    Although these proposed changes have not been formally adopted, UE recommends that institutions:

    • Consult with legal counsel before revising your sexual misconduct policy or procedures. Until the final regulations are released, refrain from issuing extensive changes. Rather, strive to make policy revisions in a systematic manner. Institutions that have continuously revised their policies to align with OCR’s previous Title IX guidance should be well-positioned to make these additional changes.
    • Continue to follow the requirements of the 2013 VAWA Reauthorization and its regulations, which apply in cases of dating violence, domestic violence, and sexual assault or stalking. The VAWA regulations are not affected by the proposed Title IX regulations.
    • Colleges and universities must comply with both Title IX and VAWA, as they govern sex discrimination in different ways:
      • Title IX protects students’ access to and participation in discrimination-free educational programs 
      • VAWA requires campus safety and prevention/response efforts for incidents of sexual assault, domestic violence, dating violence, and stalking.

      In practice, both laws require campus officials to report and respond to incidents of sexual harassment or violence, but for different purposes. Once the final Title IX regulations are adopted, obligations of individuals with reporting requirements may need to be clarified and additional training may be necessary. 

    • Comply with relevant state laws. Some states, such as California and New York, have passed their own requirements relating to sexual harassment or assault at educational institutions.
    • Stay abreast of case law in your jurisdiction arising out of an institution’s handling of a student sexual assault. Student litigation against colleges is often a more pressing liability threat than OCR Title IX enforcement. State and federal case law is developing in response to these lawsuits; schools should be aware of court-imposed standards of care or process requirements.
    • Ensure investigators and decision-makers are trained on the definition of sexual harassment and your process in a bias-free way. In addition, train students, faculty, and staff on any revisions to an institution’s policy or procedures. Ensure that all training materials are free from bias, stereotypes, or encouraging a pre-determined investigatory outcome.
    • If you are subject to a pending OCR investigation, consider starting a dialogue with the appropriate OCR regional office to understand how the final regulations will apply. 

    Existing resolution agreements remain binding. Schools and their counsel may also want to discuss with OCR the continuing need for extensive compliance or monitoring requirements mandated under those agreements.

    While the draft proposed regulations are not enforceable at this time and may undergo changes, institutions should begin a policy and process review now, with a focus on fairness for all parties involved. 


    Resources

    Proposed Rule: Federal Register

    By Heather Salko, senior risk management counsel


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