The deadline to submit comments on the proposed Title IX regulations is quickly approaching. The Notice of Proposed Rulemaking on Title IX was released by the Department of Education on November 16, 2018, and was published in the Federal Register on November 28, 2018, starting the clock on the 60 day comment period. Comments can be submitted through the Federal eRulemaking Portal at Regulations.gov. To date, over 66,000 comments have been submitted in response to the proposed regulations.
The comment period was initially scheduled to close on January 28, 2019. However, after technical issues took the Federal eRulemaking Portal temporarily offline last week, the Department of Education extended the deadline. Comments must now be received on or before January 30, 2019 at 11:59 P.M. Eastern Time.
The proposed regulations, in their present form, represent a significant departure from the “Dear Colleague Letters” issued by the Obama administration and contain changes beyond what was previewed in the September 2017 Interim Guidance and the “leaked” version of the proposed regulations obtained in August 2018.
Many of the changes relate to aligning regulatory definitions with the definitions provided by the U.S. Supreme Court. Under the proposed regulations, the proposed definition of sexual harassment includes “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” Previous guidance under the Obama administration had defined sexual harassment as “unwelcome conduct of a sexual nature.” The new proposed definition is substantially narrower than the previous guidance. Further, if the conduct alleged would not meet the definition of sexual harassment under these regulations, then the institution must terminate the grievance process, but may be able to address the conduct under a separate student conduct proceeding.
The proposed changes also significantly increase the procedural protections provided to respondents in situations where a formal complaint is filed with the institution. The proposed regulations require that institutions of higher education provide a live hearing where parties are permitted to ask witnesses relevant questions. Requiring a live hearing prohibits the “single-investigator” or “investigator only” models in use at some institutions. Further, at this live hearing, each party must have the opportunity for their advisor (who may be an attorney) to conduct cross-examination of the other party and any witnesses. If a party or witness is not available for cross-examination, a hearing panel would be precluded from relying on information from that individual in reaching their determination. While some federal case law had already required some opportunity to cross-examine the other party and witnesses, these proposed regulations go beyond the existing case law in requiring that cross-examination be conducted by the party’s advisor.
After technical issues took the Federal eRulemaking Portal offline last week, anyone planning to submit comments may want to plan ahead and submit before the deadline on January 30.
Veronica E. Potter practices primarily in the areas of higher education, litigation, and labor and employment law. Veronica represents colleges, universities, and private employers in education and employment litigation matters. Veronica started her legal career as a prosecutor, where she gained experience in all stages of litigation, including case investigation, discovery, arguing pre-trial motions, and presenting cases to both judges and juries. Prior to joining the firm, Veronica also practiced civil litigation at a large defense firm in St. Louis.
Kate L. Nash is a shareholder of the firm and practices primarily in the areas of higher education, litigation, and labor and employment law. Kate acts as outside general counsel to numerous institutions of higher education, advising those organizations on a wide range of legal issues. In addition, Kate is frequently asked to conduct internal investigations regarding complex and sensitive matters in workplaces and at educational institutions. Kate also has extensive litigation experience litigation experience in federal and state courts and before federal and state administrative agencies. Kate is a frequent lecturer and author on employment and higher education issues and is active in the National Association of College and University Attorneys. She was an adjunct professor at Saint Louis University School of Law for numerous years, where she taught a course on non-profit organizations. Kate earned her B.A. from Cornell University and received her law degree at Washington University. Kate is a member of the Firm’s Management Committee.
Higher Education – Tueth Keeney maintains one of the largest and most successful higher education law groups in the Midwest. Our higher education practice includes representation of numerous colleges and universities throughout Missouri and Illinois. In addition, the Firm is one of approximately twenty law firms in the nation that have been appointed to act as Select Counsel to represent higher education institutions insured by United Educators Insurance Risk Retention Group, Inc., the nation’s largest insurer of colleges and universities. The attorneys in the Firm’s higher education group provide a full range of services to colleges and universities, ranging from day-to-day counseling on legal issues, to representation in complex litigation.