On May 6, 2020, the U.S. Department of Education (Department) issued the long-awaited new regulations under Title IX of the Education Amendments of 1972 (Title IX). The more than 2,000-page document, which was approximately two years in the making, differs in certain respects from prior proposed regulations and marks a significant departure from many aspects of the Obama-era guidance regarding schools' response to sexual harassment issues. The Department has stated that the new regulations strengthen protections for survivors of sexual misconduct and restore due process in campus proceedings to strike a balance that is fair and ensures that all students are protected from sex discrimination. And the Office for Civil Rights (OCR) has gone so far as to call the new regulations a “game-changer.” Nonetheless, certain aspects of the new regulations have been points of contention for some victim advocacy groups who believe that the new regulations discourage reporting of sexual misconduct. Indeed, certain groups have already threatened to challenge the new regulations in court.
Some of the key aspects of the new regulations, which go into effect on August 14, 2020, include the following:
- Modified Definition of Sexual Harassment: The new regulations define sexual harassment for purposes of Title IX as “any unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive” that it effectively denies a person equal access to education. In contrast, the prior guidance defined sexual harassment more broadly as “unwelcome conduct of a sexual nature.” However, the new definition does include relationship violence such as dating violence, domestic violence, and stalking as unlawful discrimination on the basis of sex.
- Triggers for Response: Under the new regulations, a school’s obligation under Title IX to respond to an allegation of sexual harassment is triggered only when the school has actual knowledge of the sexual harassment. This departs from prior guidance which stated that constructive notice could trigger a duty to respond to sexual harassment. Moreover, schools must act upon complaints of misconduct that occur within an education program, including off-campus school-sanctioned fraternities and sororities and events that are part of a university program (within the United States). But a school may address sexual harassment affecting its students or employees that fall outside of Title IX’s jurisdiction in any manner the school chooses.
- Standard for Response: A school’s response to sexual harassment will be assessed according to a “deliberate indifference” standard. Under this standard, a response will violate Title IX if it is “clearly unreasonable in light of the known circumstances.” In contrast, prior guidance stated that a school’s response would be judged under a reasonableness standard. The regulations require schools to provide clear, accessible options for any person to report sexual misconduct.
- Investigations: The new regulations prohibit use of the single-investigator model, instead requiring a decision-maker separate from the Title IX Coordinator or investigator. Moreover, the accused must be provided evidence related to allegations in advance of requiring a response from the accused. Schools also have to provide written notice of any investigative interviews, meeting and hearings and parties cannot be prohibited from speaking about the allegations.
- Live Hearings: The new regulations require postsecondary institutions to conduct live hearings before making final determinations on complaints of sexual harassment. Live hearings will be recorded, by transcript or audiovisually, and will be made available to parties and maintained in college records for at least seven years. Title IX processes, including the live hearings, may be conducted virtually, and staff must be trained to conduct remote investigations and hearings.
- Cross Examination: Under the new regulations, hearings at postsecondary institutions must permit cross-examination conducted by the parties’ advisors. Statements made by parties and not cross-examined as part of the investigation may not be used as evidence. This stands in sharp contrast to the prior guidance, which strongly discouraged cross-examination based upon concerns of potential re-traumatization of the parties. However, the new cross-examination requirement is subject to “rape shield” protections and does shield survivors from having to come face-to-face with the accused by requiring that cross-examination be conducted by an advisor or representative of the accused.
- Standard of Proof: Previously, the “preponderance of the evidence” standard was mandated when deciding whether sexual misconduct occurred. The new regulations allow schools to apply either the preponderance of the evidence standard or the higher “clear and convincing evidence” standard. The selected standard must apply to all Title IX sexual harassment cases (both student and employee cases).
Unlike the prior guidance, these new regulations carry the weight of law, and schools that fail to adhere to the new Title IX requirements risk the loss of federal funding. Moreover, the August 14, 2020 effective date provides a short implementation period and is just over three (3) months away. As such, it is understandable that schools will be stretched to implement the new guidelines especially given that schools are still heavily focused on and dealing with the impact of the coronavirus pandemic.
A more detailed evaluation of the changes under the new regulations can be found at the U.S. Department of Education’s website (found here and here).
Our Higher Education team is here to help, and we will continue to provide guidance regarding these new Title IX regulations as we approach the August 14, 2020 effective date. Please contact your Michael Best attorney with any questions.