by Veronica Potter
On May 6, 2020, the U.S. Department of Education (“ED”) released the final Title IX regulations (“Final Rule”). ED had previously issued a Notice of Proposed Rulemaking (“NPRM”) in November 2018. The NPRM was subject to notice and comment through January 2019, and during this time, over 124,000 comments were submitted to ED. The implementation date for the Final Rule is August 14, 2020.
The Final Rule is quite lengthy ““ over 2,000 pages; ED has provided several summary documents including an overview of the rule, summary of the major provisions of the rule, and a comparison of the final rule to the NPRM. These final regulations represent a significant departure from the “Dear Colleague Letters” issued by the prior administration. Many of the changes attempt to align regulatory definitions with the definitions provided by the U.S. Supreme Court. The changes also significantly increase the procedural protections provided to respondents in situations where a formal complaint is filed with the institution.
While the ED summaries provide a broad overview of the proposed revisions, there are several notable changes that will impact how institutions address Title IX concerns:
Narrowing the definition of sexual harassment
- Sexual harassment is now defined as:
- Any instance of quid pro quo harassment by an institution’s employee;
- Any unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal educational access; or
- Any instance of sexual assault as defined by the Clery Act, or of dating violence, domestic violence, or stalking as defined by the Violence Against Women Act.
- Previous guidance under the Obama administration had defined sexual harassment as “unwelcome conduct of a sexual nature.” The Final Rule narrows this definition in line with the standards set by the Supreme Court in Title IX case law.
Limiting when an institution can proceed under Title IX grievance procedures
- If the conduct alleged would not meet the definition of sexual harassment under the Final Rule or did not occur in the institution’s education program or activity against a person in the United States, then the institution must terminate the grievance process for the purposes of Title IX.
- The institution may proceed under the code of conduct for such allegations.
Aligning standards and definitions with case law
- An institution with actual knowledge of sexual harassment in an education program or activity of the school against a person in the United States must respond in a manner that is not deliberately indifferent. An institution is only deliberately indifferent if its response to sexual harassment is “clearly unreasonable in light of the known circumstances.”
- ED has set out some specific requirements that institutions must follow with regard to this deliberate indifference standard, including:
- Offer supportive measures to the complainant;
- Prompt contact of complainant by the Title IX Coordinator to offer and discuss supportive measures and to explain the formal complaint process;
- Follow a grievance policy that complies with the Final Rule;
- Protect constitutional rights when complying with Title IX;
- Investigate sexual harassment allegations in any formal complaint
- Actual knowledge is defined as “notice of sexual harassment or allegations of sexual harassment to an institution’s Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient.” This definition is a departure from prior guidance on OCR enforcement that required a response if there was constructive notice.
Limiting grievance procedures to conduct that occurs within an educational program or activity
- ED indicates that it will look at the definitions in the Title IX statute and existing regulations to define an institution’s “program or activity.” This includes locations, events, and circumstances over which the school exercised substantial control over both the respondent and the context in which the alleged conduct occurred.
- While the NPRM appeared to exclude all off-campus locations, the Final Rule specifically includes any building owned or controlled by a student organization that is officially recognized by the institution, such as a sorority or fraternity.
- As mentioned above, if the conduct alleged does not occur within an educational program or activity, then the institution must terminate the grievance process, but can address the conduct under a separate student conduct proceeding.
Only requiring that institutions investigate formal complaints
- While institutions must offer all complainants supportive measures, they are only required to investigate and follow grievance procedures for formal complaints.
- A formal complaint is a written document filed by a complainant ““ it can be submitted in person, by mail, or by e-mail. It must contain the complainant’s physical or digital signature, or otherwise indicate it is being filed by the complainant.
- The Final Rule states that the institution should respect a complainant’s wishes as to whether they wish to file a formal complaint (unless the Title IX Coordinator determines that it is not clearly unreasonable based on the circumstances to proceed with signing a formal complaint him or herself and initiating an investigation over the complainants wishes). This removes the requirement from the NPRM that the Title IX Coordinator file a formal complaint where there was actual knowledge of reports from multiple complainants against the same respondent.
Requiring grievance procedures to include a live hearing with cross-examination of the parties and witnesses
- Grievance procedures must involve a live hearing before a decision maker who is not the same person who conducted the investigation (prohibiting the “single investigator” model). The live hearing must include cross-examination that is conducted directly, orally, and in real time by the party’s advisor, but never the party personally.
- While hearings must be live and include cross-examination, they may be conducted virtually. If either party requests that the parties be physically separated and attend virtually, then that must be provided.
- If a party or witness is not available for cross-examination, the decision maker is precluded from relying on information from that individual in reaching their determination. However, the decision maker may not make any inference regarding responsibility based solely on a party or witness”™ refusal to answer cross examination questions.
- While some federal case law had already required some opportunity to cross-examine the other party and witnesses, the Final Rule goes beyond the existing case law in requiring that cross-examination be conducted by the party’s advisor and requires that the cross-examination be conducted directly, orally, and in real time.
Requiring the institution to provide an advocate for a party at the live hearing if they do not have one
- Institutions must provide an advocate to any party who does not have an advocate for the live hearing. The advocate may be an attorney, but is not required to be. The advocate must be provided free of charge to the party.
- The Final Rule removes the requirement from the NPRM that the advocate be “aligned with the party.”
Allowing for different standards of proof
- Institutions may use either the preponderance of evidence standard or the clear and convincing standard of evidence in reaching determinations of responsibility under the Title IX grievance procedures. However, the institution must use the same standard for all Title IX complaints, whether they involved a student or faculty respondent.
The Final Rule includes significant changes to the Title IX landscape and only allows approximately 100 days for implementation. Though this is not much time, ED stated that they considered both the current pandemic and the public comments about an effective date in setting the implementation date at August 14, 2020. Given this short time frame, institutions will need to act quickly to draft and implement new policies to ensure compliance with these regulations.
Our Higher Education Team will continue to review all the details of the Final Rule. If you have questions about how these regulations might impact your institution, please contact your Tueth Keeney higher education attorney.
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.
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.