On November 16, 2018, the Department of Education (ED) issued the highly anticipated and long awaited new proposed regulations under Title IX of the Education Amendments of 1972 (Title IX). The 149-page document differs in certain respects from the draft of the rules that leaked in August 2018 and marks a significant departure from many aspects of the Obama-era guidance on the response to sexual harassment issues. Key proposals that would impact institutions of higher education include:
Narrowed definition of “sexual harassment”. The new rules would define sexual harassment for purposes of Title IX as any of three types of behavior: (1) a school employee conditioning an educational benefit or service upon a person’s participation in unwelcome sexual conduct (i.e., quid pro quo harassment); (2) 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 school’s education program or activity; or (3) sexual assault as that crime is defined in the Clery Act regulations. With respect to prong (2), the proposed definition aligns with the standard developed by the U.S. Supreme Court in cases assessing liability under Title IX in private litigation. The Obama-era guidance defined sexual harassment more broadly as “unwelcome conduct of a sexual nature.”
What triggers an obligation to respond and how to respond. A school’s obligation under Title IX to respond would be triggered only when the following conditions are met: (1) the school has actual knowledge of sexual harassment (or alleged harassment); (2) the conduct occurred within the school’s own program or activity; and (3) the alleged harassment occurred within the United States. A school’s response would be assessed under a “deliberate indifference” standard, under which a response will be found to violate Title IX if it is “clearly unreasonable in light of the known circumstances.” These proposals depart from prior guidance that stated that constructive notice could trigger a duty to respond to sexual harassment and that a school’s response to alleged harassment should be judged under a reasonableness standard.
The proposals also distinguish between informal and formal complaints. A formal complaint document signed by a complainant or by a Title IX Coordinator alleging sexual harassment against a respondent would require a school to activate its formal grievance process. In the absence of a formal complaint, the new rules would require a school to offer a complainant supportive measures but would not necessarily require activation of the grievance process. The proposal also includes a provision to require a Title IX Coordinator to initiate a formal complaint to investigate a possible pattern of harassment in the event of multiple informal complaints of conduct by the same respondent that could constitute sexual harassment.
Live hearings and cross-examination. The new rule would require higher education institutions to conduct live hearings before making final determinations of formal complaints of sexual harassment, and a hearing would have to permit cross-examination. Many anticipated that the proposed regulations would provide for cross-examination through the factfinder, based on questions submitted by the parties, but the new rules would permit cross-examination conducted directly by a party’s advisor of choice (including a lawyer). If a party does not have an advisor present at the hearing, a school would have to provide that party an advisor for purposes of conducting the cross-examination. The rules would stipulate the narrow circumstances in which a party could seek information at the hearing about a person’s prior sexual history and would generally forbid harassing or irrelevant questions. Either party could also request that the cross-examination occur with the parties located in separate rooms, so long as the questioning party and factfinders can “simultaneously see and hear” the person testifying. These proposals stand in sharp contrast to the Obama-era guidance, which strongly discouraged cross-examination based on the concern about potential retraumatization of the parties.
Standard of proof. The Obama-era guidance mandated the use of a “preponderance of the evidence” standard when deciding whether sexual misconduct occurred. The new rules would allow schools to apply either the preponderance of the evidence standard or the higher “clear and convincing evidence” standard. However, the new rules would permit a school to use the lower preponderance standard only if it uses that standard for other conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanction, and schools would also have to use the same standard of evidence in sexual harassment cases against student respondents that it uses in sexual harassment against employee respondents (including faculty).
No single investigator model. Many higher education institutions currently utilize a “single-investigator” model in which one person (e.g., a Title IX Coordinator) receives a complaint of sexual harassment, conducts interviews of the parties and witnesses, reviews the evidence, writes an investigation report, and issues a determination. The proposed regulations would prohibit the single-investigator or “investigator-only” model. After a school has investigated an allegation, a separate decision-maker or panel of decision-makers would have to reach a determination about responsibility following the live hearing process noted above. Whether to permit an appeal under the grievance process would remain optional, but any appeal decision-maker would have to be different than the Title IX Coordinator, investigator, or initial decision-maker(s).
Availability of informal resolution. The proposed regulations would permit schools to facilitate informal resolution (e.g., mediation) of sexual harassment complaints, including complaints involving alleged sexual assault. Informal resolution would have to be voluntary and pursuant to informed, written consent provided by the parties. The withdrawn Obama-era guidance stated that mediation was not appropriate in cases involving sexual assault claims.
Recordkeeping. Under the new rules, a school would have to create, make available to the complainant and respondent, and maintain for three years records of: (1) the sexual harassment investigation, any determination, and any disciplinary sanctions and/or remedies; (2) the result of any appeal; (3) any informal resolution; and (4) materials used to train coordinators, investigators, and decision-makers with regard to sexual harassment. A school would also have to document the supportive measures taken in response to a report of sexual harassment and the adequacy of the measures.
The proposed regulations will be open for public comment for 60 days from the date of publication in the Federal Register. ED has asked specifically for comments on the proposal about the standard of evidence, as well as input on whether schools possess the technology required to accomplish “live hearings” in cases where one or both parties request to be in separate rooms. Unlike the withdrawn Obama-era guidance documents, which were not subject to notice and comment rulemaking, the new rules will carry the weight of law once published in their final form. We will continue to monitor developments that impact institutions of higher education.