On May 6, 2020, the U.S. Department of Education issued the Final Rule on Title IX of the Education Amendments of 1972 (“Title IX”) regulations. These are the first comprehensive regulations issued under Title IX since 1975.
The Final Rule goes into effect on Friday, August 14, 2020. Its provisions will significantly impact K-12 school districts, colleges, and universities. The changes include: a definition for sexual harassment, requirement for publication of Title IX materials, triggers for an institution’s legal obligation to respond and investigate, and a requirement that institutions conduct courtroom-like hearings.
- The new regulations establish that sexual harassment, including sexual assault, is unlawful sex discrimination under Title IX. Sexual harassment means conduct on the basis of sex that satisfies one or more of the following: (1) An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct (quid pro quo conduct); (2) Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or (3) “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).
- The new regulations establish a three-part framework for institutional liability under Title IX: 1) conditions must exist to trigger a school’s response obligations (actionable sexual harassment), 2) the school must have actual knowledge, and 3) the institution must act with deliberate indifference in its response. “Deliberate indifference” is defined as “clearly unreasonable in light of the known circumstances.”
- The rule narrows the individuals whose knowledge of sexual misconduct or a report thereof will be imputed to an educational institution in higher education.
- For Title IX purposes, institutions are required to dismiss allegations of conduct that do not meet the Final Rule’s definition of sexual harassment or did not occur in the institution’s education program or activity against a person in the United States (exempting study abroad programs from Title IX), but institutions may have separate processes and procedures to address those circumstances.
- Institutions will be required to post on their websites (or make available for the public to inspect) materials used to train Title IX personnel and prominently display contact information for the Title IX Coordinator (name or title, office address, email address, and telephone number).
- The rule requires that the Title IX Coordinator contact the complainant (alleged victim) to discuss and offer supportive measures. The Title IX Coordinator must consider the complainant’s wishes regarding supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain the process for filing a formal complaint. The Department in the Final Rule Preamble places great weight on the importance of supportive measures as a legal requirement to provide immediate support for complainant even for situations that do not result in a formal complaint and Title IX investigation.
- The rule is clear than anyone can file a formal complaint, and any student or employee is protected by Title IX.
- The new regulations require schools to follow a proscribed grievance process that complies with various requirements stated in the Final Rule. Even if no formal complaint is filed, schools are still required to comply with various mandatory response obligations, which include offering and informing the complainant of supportive measures and following the appropriate grievance process prior to imposing discipline against a respondent.
- An institution must investigate, including gathering evidence, the allegations in any formal complaint. Written notice of the allegations must be sent to the complainant and respondent containing sufficient details to permit them to prepare for any interviews.
- The institution may choose between the preponderance of the evidence standard or the clear and convincing evidence standard to evaluate evidence, so long as the institution uses the same standard of evidence for formal complaints against students as for formal complaints against employees, including faculty, and apply the same standard of evidence to all formal complaints of sexual harassment.
- The new regulation requires higher education institutions to safeguard due process during the grievance process. This includes live hearings with cross-examination.
- Such cross-examination can be done in such a manner as to safeguard against further trauma or inconvenience (e.g., virtually, through separate rooms, questioning not conducted by the respondent personally, etc.). The regulations declined to create a complex set of evidentiary rules to govern the hearing, but did note that hearsay statements are not admissible because they are not subject to cross-examination (even if there are other indicia of reliability and/or a hearsay exception would exist under the Federal Rules of Evidence).
- If the complainant does not appear or refuses to be cross-examined, then the complainant’s statements and allegations in the formal complaint cannot be admitted at the hearing. If the respondent refuses to appear or be cross-examined, the hearing can continue based on other evidence but no inferences about responsibility can be drawn from the respondent’s non-appearance.
- An institution must have an appeal process that is equally available to both parties, and is available on at least three bases: (1) procedural irregularity that affected the outcome; (2) new evidence that was not reasonably available when the determination of responsibility was made that could affect the outcome; or (3) the Title IX Coordinator, investigator, or decision-maker had a conflict of interest or bias that affected the outcome.
The Final Rule is complex and contains nuances and implications still under review. We will issue further commentary and guidance in the future. The Department issued additional resources helpful to review and interpret the new regulations, including:
- The Commentary to the Final Rule
- Fact Sheet: Final Title IX Regulations
- Title IX Final Rule Overview
- Summary of Major Provisions
- Summary of Major Provisions and Comparison to the NPRM
With an effective date of August 14, 2020, schools must act quickly to update policies and procedures, including creating and implementing new grievance procedures and developing procedures to accommodate live hearings. In addition, the changes in the Title IX rule will require new training for Title IX positions, as well as all staff and faculty.