New Title IX Guidance Released

On July 20, 2021, the Department of Education (through the Office of Civil Rights “OCR”), unveiled new guidance to help schools understand their obligations under the Betsy DeVos-era Title IX rule. The rule, which went into effect on August 14, 2020, is currently undergoing a comprehensive review based on the Executive Order issued by President Biden on April 6, 2021. 

The 67-page Q&A is divided into 17 sections and provides guidance on a variety of topics covered by the 2020 Title IX amendments, focusing on language within the preamble. The guidance also includes an appendix with sample language schools can utilize (but are not required to) in creating a Title IX policy. 

OCR makes it clear that the 2020 Title IX amendments set out the minimum steps a school must take in response to notice of alleged sexual harassment. Schools may take additional actions so long as there is no conflict with Title IX. Some key points of the guidance which apply to postsecondary institutions include: 

Definition of Sexual Harassment and When/How it Occurs

  • Schools can respond to alleged sexual misconduct that does not meet the definition of sexual harassment in the 2020 amendments. 
  • OCR encourages schools to develop and enforce their codes of conduct as an additional tool for ensuing safe and supportive educational environments for all students.
  • Schools must provide training to Title IX personnel to accurately identify situations that require a response. OCR encourages schools to include examples of “programs and activities” in their policies, staff training and student-orientated communication for improved understanding.
  • Schools must follow the requirements of the Title IX statute and the regulations in place at the time of the alleged incident. The 2020 amendments do not apply to alleged sexual harassment occurring before August 14, 2020. 

Notice of Sexual Harassment 

  • OCR cannot provide examples of individuals at the postsecondary level that have authority to institute corrective action (which triggers actual knowledge, and the school must respond) because this determination must be made at the school level. The school is in the best position to determine who can institute corrective action. 
  • Schools are put on notice (actual knowledge) of alleged sexual harassment by any person (not limited to a complainant) if it is a school official with authority to institute corrective action. This would include information from a newspaper article, oral report, written report, personal observation or anonymous report.
  • The Department will not hold a postsecondary school responsible for responding to sexual harassment unless the employee actually gave notice to the school’s Title IX coordinator or other official with an authority to institute corrective action. 

Response to Sexual Harassment 

  • There are no remedies schools are required to impose when a respondent is found responsible of sexual harassment. Schools are free to make disciplinary and remedial decisions that it “believes are in the best interest of [its] educational environment.”
  • If a respondent is found responsible (at the conclusion of the grievance process), remedies can be disciplinary, punitive, and burdensome to the respondent if the remedy restores or preserves the complainant’s equal access to the education program or activity.

Formal Complaints 

  • Generally, a formal complaint must be signed. An email from a student to a Title IX Coordinator that ends with the student signing their name would suffice.
  • A Title IX Coordinator may file a formal complaint even if the complainant is not associated with the school in any way. 
  • A school must respond to a formal complaint even if the respondent left the school prior to the filing and has no plans to return. 
  • The school must use technology when needed. It cannot delay investigations or hearings solely because in-person interviews are not feasible. 

Supportive Measures

  • The school has discretion and flexibility to determine which supportive measures are appropriate. 
  • A school must provide appropriate supportive measures during the covid-19 pandemic. 
  • Supportive measures must be provided even if the complainant does not participate in the grievance process. 

Live Hearings and Cross-Examination 

  • Each 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 parties are in the best position to decide which individuals should serve as their advisors. Advisors can be friends, family members, an attorney, or other individual chosen or provided by the school if the party does not choose one.
  • Schools can adopt rules of decorum best suited for its education environment.
  • There must be a pause after each cross-examination question for the decision-maker to determine if the question is relevant. 
  • Answers to cross-examination questions do not need to be “linear or sequential” and a party does not have to “recall details with certain levels of specificity.”
  • Police reports, medical reports and other documents and records may not be relied on to the extent they contain the statements of a party or witness who has not submitted to cross-examination. 
  • The decision-maker may consider a text message, email or audio or video recording created and sent by a respondent as a form of alleged sexual harassment even if the respondent does not submit to cross-examination. 
  • If a party or witness submits to cross-examination but does not answer a question posed by the decision-maker, the decision-maker may still rely on all of that person’s statement. 

Standard of Proof, Retaliation and Amnesty

  • The same standard of proof (preponderance of the evidence or clear and convincing) must be applied for all formal complaints. Schools cannot use a different standard of proof for a complaint involving students and employees.
  • Charges against an individual for code of conduct violations that do not involved sex discrimination or sexual harassment but arise out of the same facts or circumstances as a complaint of sexual harassment are prohibited if the charge would be retaliatory. However, if the school has a zero-tolerance policy which imposes the same punishment for such conduct regardless of the circumstances, imposing punishment would not be for the purpose of interfering with any right or privilege secured by Title IX and would not be considered retaliatory. 

Forms of Sex Discrimination Other than Sexual Harassment

  • The Title IX grievance process does not apply to complaints alleging discrimination based on pregnancy, different treatment based on sex, or other forms of sex discrimination. However, schools must still respond promptly and equitably to such complaints. OCR recommends that procedures should be written, easily understood and widely disseminated

Duane Morris Education Industry Group Ranked in The Legal 500

Duane Morris’ Education Industry Group has been ranked in The Legal 500 US 2021 guide.

An excerpt from the publication:

Duane Morris LLP’s education practice brings together a multidisciplinary team skilled across litigation, real estate, and employment law, and has a very strong reputation, “rooted in understanding the needs of in-house counsel.”

Testimonials

        • “This practice group is rooted in understanding the needs of in-house counsel and providing recommendation and advice in which operational impact is considered.”
        • “Tony Guida is exceptional at connecting people and issues and staffing matters with key talent, while considering the client need. He is well respected in the field and has served in a variety of capacities in-house prior to move to partner. His appreciation of board expectations, operational needs legal and regulatory concerns leads to unmatched service.”
        • “The Duane Morris team affords us a truly bipartisan approach to our efforts. They are well read and able to breakdown key points of legislation that would have effects on our membership while offering well thought out strategies to embrace or fight against.”

For more information, please visit the firm website.

Department of Education Interprets Title IX to Protect LGBTQ+ Students

The Department of Education issued on June 16, 2021, a Notice of Interpretation concluding that Title IX prohibits discrimination on the basis of sexual orientation and gender identity. Accordingly, the Department will now “fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department.”

In the Notice, the Department Continue reading “Department of Education Interprets Title IX to Protect LGBTQ+ Students”

U.S. Department of Education Proposes Massive Rewrite of Title IV Regulations

Later this month the Department of Education will embark on the first steps towards a massive rewrite of programs authorized by Title IV of the Higher Education Act of 1965. The Department is seeking input on a wide range of federal higher education topics, as identified in the notice, as well as input on how the Department could address gaps in postsecondary outcomes such as retention, completion, loan repayment, and student loan default by race, ethnicity, gender, and other key student characteristics. Continue reading “U.S. Department of Education Proposes Massive Rewrite of Title IV Regulations”

Why You Should Require Students to Get Vaccinated as COVID Retreats

We have entered a new phase in the COVID-19 pandemic in the United States.

We no longer wake up every day to increasing numbers of deaths, infections, and reminders about social distancing and vaccine shortages. Instead, we now read about record low numbers of infections, limited fatalities, and a domestic surplus of vaccine so large that we are now vaccinating children as young as 12 and may be exporting it by June.

And, just last week, the CDC dispensed with mask guidance for vaccinated people. This prompted President Biden to host his first “maskless” appearance of his presidency. For college leaders planning the summer and fall semesters, it’s a 180-degree turnaround that we were afraid to hope for just last year.

Yet here we are. The question now vexing colleges is how to safely reopen on-ground learning with a pandemic in retreat. It’s a nice problem to have, but it still has to be solved.

To read the full text of this article by Duane Morris partner Edward M. Cramp, please visit the University Business website.

Webinar Replay: Reviewing the Third Round of Higher Education Emergency Relief Funds (HEERF III)

A replay of the webinar, “Reviewing the Third Round of Higher Education Emergency Relief Funds (HEERF III),” is now available.

About the Program
On January 14, 2021, the U.S. Department of Education published information regarding the process, timing and allocation levels for the Coronavirus Response and Relief Supplemental Appropriations Act, 2021 (CRRSAA), Higher Education Emergency Relief Funds (HEERF II funds) contained in the 2021 Consolidated Appropriations Act. Subsequently, the Department published guidance documents on February 25, March 19 and March 22. In addition, on March 10, Congress passed the American Rescue Plan Act of 2021 (ARPA), providing yet another round of direct grant funding (HEERF III funds).

COVID-19 Vaccination Policy for Higher Education Institutions: Issues to Consider

As states have opened COVID-19 vaccinations to all individuals 16 and older (and are expanding to age 12 and older, based on the CDC advisory committee’s recent recommendation), institutions of higher education, like many other employers, are considering whether to encourage or possibly mandate their employees to receive a vaccination. Unlike other organizations, institutions of higher education have the added quandary of whether to encourage or mandate COVID-19 vaccinations for students in an effort to return to full in-person instruction.

To read the full text of this Duane Morris Alert, please visit the firm website.

NLRB Withdraws Proposed Rule About Student Workers – What Does It Mean for Private Colleges and Universities?

On March 15, 2021, the National Labor Relations Board withdrew a proposed rule that would have established that students who perform services for compensation at private colleges and universities in connection with their studies are not “employees” within the meaning of the National Labor Relations Act. With additional legislation and rulemaking in the pipeline, private colleges and universities need to pay close attention to what is happening on the federal stage, as well as on their campuses.

To read the full text of this Duane Morris Alert, please visit the firm website.