New Title IX Regulations on Campus Sexual Harassment Finally Issued by U.S. Department of Education

05.08.2020

On May 6, 2020, the U.S. Department of Education issued its long-awaited Final Rule^[1] regarding Title IX of the Education Amendments of 1972. Title IX provides that:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”^[2]

This Final Rule will impact how elementary, secondary, and postsecondary educational institutions handle claims of sex discrimination, including sexual harassment, sexual assault, dating/domestic violence and stalking on the basis of sex across California and the nation. While an official version of the new regulations will not be published until May 22, 2020 and will not become effective until August 14, 2020, this alert highlights some major changes contained in the Final Rule (hereafter “new regulations”). 

The new regulations impact a broad range of responsibilities and obligations under Title IX, which require educational institutions (“recipients”^[3]) to pay immediate attention to implementing and otherwise complying with the regulatory requirements by August 2020.  The new regulations include, among other items, the following critically important definitions and required procedures:

• Defining Sexual Harassment: Sexual harassment is defined more narrowly under the new regulations as conduct on the basis of sex that satisfies one or more of the following: (1) an employee conditioning the provision of an aid, benefits or service of the recipient on participation in unwelcome sexual conduct (i.e., quid pro quo); (2) unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity (i.e., hostile environment); or (3) sexual assault as defined in the Cleary Act,^[4] dating violence,^[5] domestic violence,^[6] and stalking^[7] as defined in the Violence Against Women Act (VAWA).
• Requiring Actual Knowledge: A recipient with actual knowledge of sexual harassment against a person in the United States, in an education program or activity (over which the recipient has substantial control) must respond in a manner that is not deliberately indifferent. Deliberate indifference occurs when the recipient’s response is “clearly unreasonable in light of the known circumstances.” ^[8] A recipient has “actual knowledge” when notice of "sexual harassment or allegations of sexual harassment" is provided 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, or
  • any employee of an elementary and secondary school.^[9]
• Clarifying Who is a Complainant or Respondent: A “Complainant” is defined an individual who is alleged to be the victim of conduct that could constitute sexual harassment. The new regulations expressly recognize the legal rights of parents and guardians to act on behalf of parties (including by filing formal complaints) in Title IX matters, but parents and guardians do not become the actual complainant or respondent. A “Respondent” is defined as an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.^[10]
• Identifying Requirements of a Formal Complaint: A “formal complaint” is more narrowly defined as a “document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the recipient investigate the allegation of sexual harassment.” The new regulations further emphasize that, at the time of filing a formal complaint, a Complainant must be participating in or attempting to participate in the education program or activity of the recipient with which the formal complaint is filed.^[11]
• Defining Supportive Measures: The new regulations define “supportive measures” (referred to as “interim measures” in prior guidance) as non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to [Complainants and Respondents]. Such measures are designed to restore or preserve equal [educational] access, without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the recipient’s educational environment, or deter sexual harassment.^[12]
• Approving Two Types of Evidentiary Standards: The standard of evidence used during an investigation may be “a preponderance of the evidence” or “clear and convincing evidence.” Schools and colleges must select one standard that it consistently uses for all Title IX investigations. The standard of evidence chosen must be the same for formal complaints against students and formal complaints against employees.^[13]
• Explaining Grounds for Mandatory and Discretionary Dismissals: There are mandatory and discretionary dismissals of a complaint under the new regulations. A recipient must dismiss a complaint if the allegations do not meet the definition of sexual harassment, (as defined above), if the alleged actions did not occur in the recipient’s educational program or activity, or if the alleged harassment did not occur against a person in the United States. A recipient may dismiss a complaint if the complainant notifies the Title IX Coordinator in writing to withdraw the complaint, if the respondent is no longer enrolled or employed by the school, or if specific circumstances prevent the recipient from gathering sufficient evidence to reach a determination regarding the allegations. Both parties will have the right to appeal a recipient’s decision to dismiss a complaint. ^[14]
• Requiring Live Hearings at Postsecondary Institutions: Post-secondary institutions must have live hearings, but can conduct such hearings virtually or remotely using technology. During a live hearing, a party’s advisor must be permitted to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. The decision maker overseeing the hearing must determine whether the question is relevant and explain any decision to exclude a question as not relevant  A party may not personally cross-examine another party. Cross-examination must be done by a party’s advisor. The regulations also establish a new requirement for postsecondary institutions to provide an advisor, free of charge, if a party does not have one, to conduct cross-examination on behalf of that party in a live hearing. Note that Rape Shield laws limiting questions about prior sexual behavior are still applicable.^[15] Under the new regulations, k-12 schools have the option, but are not required, to have a hearing related to Title IX violations. However, the new regulations provide several procedural requirements before a decision-maker reaches a determination regarding responsibility within the k-12 grievance process. ^[16]
• Providing a Right to Appeal to Complainant and Respondent: Recipients must offer both the complainant and respondent the option to appeal a determination regarding responsibility and a determination of a dismissal of a formal complaint or any allegations brought forth as part of a formal complaint.^[17]

Practical Considerations: Despite working remotely due to Covid-19, we recommend educational entities review the new regulations and existing institutional policies to determine what policies and practices should be amended and implemented to be in compliance by August 14, 2020. While the Title IX Coordinator’s responsibilities remain largely unchanged, adherence to the various requirements under the new regulations will require laser focus and diligent work with your educational institution’s Superintendent/President, student services administrators, special education administrators, board policy subcommittees, and/or legal counsel to determine how to effectively implement the new regulations with the goal of ensuring full compliance by your educational institution.

We will provide additional, in-depth alerts with the purpose of clarifying your responsibilities under the numerous topic areas discussed in the 2000+ page document.  We will also identify and examine how the responsibilities and obligations imposed under the new regulations apply generally to educational institutions and clarify the manner in which certain responsibilities and obligations uniquely apply to postsecondary educational institutions. In the near future, our legal alerts will cover particularly important Title IX topics found in the new regulations, such as:

1. What is Sexual Harassment? What is a Formal Complaint?
2. The Role of the Title IX Coordinator and Others on Campus
3. What Procedures Should be in Place for k-12 Educational Institutions?
4. What Procedures Should be in Place for Postsecondary Educational Institutions?
5. What is Now Required for Title IX Investigations?
6. What Do You Need to Know About Conducting Live Hearings and Handling Appeals?
7. Legal Challenges to the New Regulations

Please call on AALRR if you need assistance complying with the new regulations and other federal and state laws governing the requirements placed on educational institutions to address sex discrimination, including sexual assault and other sexual misconduct, on campus.

____________________________________

[1] See 34 CFR Part 106

[2] See 20 U.S.C. 1681(a)

[3] “Recipients” include elementary, secondary, and postsecondary educational institutions that receive federal financial assistance.

[4] See 20 U.S.C. 1092(f)(6)(A)(v)

[5] See 34 U.S.C 12291(a)(10)

[6] See 34 U.S.C. 12291(a)(8)

[7] See 34 U.S.C. 12291(a)(30)

[8] See 34 CFR §106.44(a)

[9] See 34 CFR §106.30(a)

[10] See 34 CFR §106.30(a)

[11] Ibid.

[12] Ibid.

[13] See 34 CFR §106.45(b)(1)(vii)

[14] See 34 CFR §106.45(b)(1)(i-iii)

[15] See 34 CFR §106.45(b)(6)(i)

[16] See 34 CFR §106.45(b)(6)(ii).  Also note that a k-12 student in California is entitled to a hearing before being expelled for sexual harassment or sexual assault as enumerated in Education Code section 48900 et seq.

[17] See 34 CFR §106.45(b)(8)