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    May 2020

    ED Releases Final Title IX Regulations Governing Campus Sexual Misconduct: Guidance for Higher Education

    The Department of Education (ED) has released Title IX regulations governing how educational institutions conduct inquiries into allegations of sex discrimination, including sexual misconduct. The regulations were published in the Federal Register on May 19, 2020. These regulations take effect Aug. 14, 2020, although at least one lawsuit has been filed challenging them. For now, the effective date stands but institutions should monitor the progress of any litigation seeking to overturn or postpone the regulations.

    The final regulations largely follow the significant changes proposed in the November 2018 Notice of Proposed Rulemaking (NPRM). Over the coming months, United Educators (UE) will review and update our Title IX resources to best aid members with compliance. In the meantime, a summary of significant portions of the regulations is below.


    Highlights

    The regulations emphasize that institutions must have a Title IX 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 institution’s disciplinary process was discriminatory or lacking in process protections. This has been particularly true in recent years, with many successful court challenges by respondents. ED has codified some of these court-determined principles into the regulations.

    Notable provisions in the regulations include:

    • Defining “sexual harassment” more narrowly, as conduct on the basis of sex that is:
      • Quid pro quo harassment by an employee
      • Hostile environment harassment or “unwelcome conduct determined by a reasonable person that is so severe, pervasive, and objectively offensive that it denies a person equal access to the recipient’s education program or activity”
      • Sexual assault, dating violence, domestic violence, or stalking as defined by the Clery Act (amended by the Violence Against Women Act (VAWA) in 2013) and its regulations
      This regulation provides a uniform definition of sexual harassment for institutions to use in Title IX policies. ED acknowledges that an institution may choose to prohibit a broader range of sexual misbehavior under the institution’s code of conduct. Institutions choosing to do so should review their policies and consult with counsel to determine necessary changes and possible consequences of making this decision.

    • 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). This means that when an institution has actual knowledge, defined as “notice of sexual harassment or allegations of sexual harassment to a recipient’s Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient,” 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 requirement mirrors the legal standard the Supreme Court adopted for liability in Title IX lawsuits seeking damages for sexual harassment, a high bar to overcome for students bringing a lawsuit. According to ED, requiring institutions to use this standard allows for a single, consistent standard, in both administrative enforcement and litigation, for determining whether an institution’s response to a sexual harassment complaint was adequate.

      In litigation, it is worth noting that Title IX’s “deliberate indifference” standard is much higher than a negligence action, where parties must prove that the institution acted unreasonably under the circumstances. Note that even if the scope of Title IX’s application has narrowed for enforcement or Title IX litigation purposes, an institution still could be liable for its response to complaints of harassment under its state’s statutory or negligence standards.

    • Requiring that, in response to a formal complaint, the institutional grievance process treats complainants and respondents equitably by providing and publicizing:
      • Remedies for the complainant when there is a finding of responsibility against the respondent
      • The prescribed process to the respondent before disciplinary sanctions are imposed
      • An objective evaluation of all relevant evidence, both inculpatory and exculpatory
      • A presumption that the respondent is not responsible for the alleged conduct until a determination is made at the disciplinary process’ conclusion
      • Reasonably prompt time frames for concluding the grievance process and appeal, as well as any informal resolution process that is offered
      • The range of disciplinary sanctions or remedies after a finding of responsibility
      • The range of supportive measures available to the parties
      Significantly, the regulations prohibit using the “single investigator” model.

    • Requiring a live hearing to determine a formal complaint’s outcome. In addition, the decision-maker cannot be the same person as the investigator or Title IX coordinator. Moreover, institutions should ensure their investigators are free of bias and do not pre-judge the respondent’s culpability before a full investigation and evaluation of the evidence.

    • Providing written notice of the allegations to the known parties along with a description of the grievance process, with sufficient time to prepare a response before their initial interview. The written notice should include:
      • The identity of the parties (if known)
      • The conduct alleged to be sexual harassment
      • The alleged incident’s date and location
      • A statement that the respondent is presumed not responsible until a determination is made at the end of the grievance process
      • A statement informing students that they are entitled to the advisor of their choice
      • A statement informing the parties of any conduct code provisions that prohibit knowingly making false statements
      Furthermore, if additional allegations are later made, an updated notice of any additional allegations must be provided.

    • Allowing the institution to use either the “preponderance of evidence” or “clear and convincing” evidentiary standard to determine responsibility in the grievance process. However, an institution must apply the same standard in both formal complaints of sexual harassment against students and formal complaints against faculty/staff in matters covered under Title IX. In considering which standard to choose, institutions should review all policies that govern allegations of misconduct, including faculty- and employee-related policies.

    • Permitting informal resolution between the complainant and respondent, following the filing of a formal complaint, and prior to a full investigation, adjudication, and determination of responsibility, if both parties are provided written notice of the allegations. The parties must voluntarily consent to any informal resolution process in writing. Informal resolutions are not allowed for allegations that a student was sexually harassed by an institution employee.

    • Placing the burden of proof and 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 not use records made or maintained by medical or mental health professionals without the party’s voluntary, written consent
      • Institutions cannot prohibit parties from discussing the allegations with others on campus
      • Allowing parties an opportunity to have their advisor of choice attend meetings, with some restrictions
      • Institutions must provide the parties with an opportunity to inspect, review, and respond to evidence obtained during the investigation that is directly related to the allegations
      • Before the investigation report is completed, institutions must send the parties and the party’s advisor evidence for review (in electronic or hard copy format)
      • Institutions must keep records of any investigation (including the outcome determination, sanction, and remedy; any appeal; and information on informal resolution) for seven years

    • Allowing cross-examination during the live hearing, with limits:
      • No direct questioning by the parties. The party’s advisor of choice must conduct questioning; an attorney may be the chosen advisor. If a party does not have an advisor, the institution must provide one.
      • Questions must be relevant. Before allowing a question to be answered, the official presiding over the hearing must determine whether the question being asked is relevant and provide an explanation if any question is deemed not relevant.
      • Questions relating to a complainant’s prior sexual history are deemed not relevant, unless offered to prove someone else was responsible for the alleged conduct, or if related to the complainant’s prior sexual behavior with the respondent and are offered to prove consent.
      • The parties may be placed in separate rooms, with technology facilitating the hearing, as long as the decision-maker and parties can simultaneously see and hear the party or witness responding to the questions
      • If a party or witness does not submit to live cross-examination, the decision-maker cannot rely on any statement made by that party or witness when making the decision about the respondent’s responsibility

    • Requiring a written determination regarding responsibility, which includes the allegations of sexual harassment, a description of the procedural 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. The determinations also must list any imposed sanctions and any remedies provided and be delivered to the parties simultaneously.

    • Requiring that both parties be permitted to bring an appeal. Appeals are allowed if:
      • There is an alleged procedural irregularity that affected the outcome
      • New evidence is available that could affect the outcome, or
      • The Title IX Coordinator, investigator, or decision-maker had a conflict of interest or bias that affected the outcome

    • Prohibiting retaliation against anyone who is a party to a complaint or has participated in (or refused to participate in) a Title IX investigation or hearing. This new provision also requires institutions to keep the identities of anyone making a report or complaint of sexual harassment, the parties, and any witnesses confidential, except as permitted by the Family Educational Rights and Privacy Act (FERPA) or required by law. Any complaints of retaliation also must be investigated and adjudicated according to the Title IX grievance process.

    UE Recommendations

    Due to these and other requirements contained in the regulations, UE recommends that institutions:

    • Consult with legal counsel before revising your sexual misconduct policy or procedures.
    • 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
      Continue following the requirements of the 2013 VAWA Reauthorization and its regulations, because the VAWA regulations are not affected by the Title IX regulations. In practice, both laws require campus officials to report and respond to incidents of sexual harassment or violence, but for different purposes.

    • Review and comply with relevant state laws to the extent possible. Some states, such as California and New York, have passed their own requirements relating to sexual harassment or assault at educational institutions. ED has indicated there is no conflict between state law and the Title IX regulations; however, in the event of a conflict, the Title IX regulations will control.

    • Stay abreast of case law in your jurisdiction arising from an institution’s handling of a student sexual harassment and sexual assault. State and federal case law continues to develop in response to student lawsuits; be aware of court decisions in your jurisdiction and consult with counsel.

    • Train your Title IX Coordinator, investigators, decision-makers, and informal resolution facilitators on:
      • The definition of sexual harassment
      • Your investigation and grievance process, including how to serve impartially
      • Technology you will use at live hearings
      • Determining evidence relevance, among other topics
      Conduct bias-free training and make training materials publicly available. Retain training materials for seven years.

      Train students, faculty, and staff on revisions to your institution’s policy and procedures.

    • If you are subject to a pending OCR investigation or a past resolution agreement, consider starting a dialogue with the appropriate OCR regional office to understand how the final regulations will apply to the investigation and your ongoing obligations to comply with a resolution agreement.

    The final Title IX regulations contain additional provisions, and all will need to be complied with by the August 2020 deadline. As you work with counsel and your campus team to revise your policies and procedures, begin the process by considering these highlighted regulations, which place the focus on creating a fair process for the parties involved.


    By Heather Salko, senior risk management counsel


    Additional Resources

    Federal Register: Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance

    ED: Title IX Regulations, summary of major provisions

    ED: Title IX Regulations, summary comparison of final rule to NPRM


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