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New Title IX Rules and Regulations

By David A. Pestell

On May 6, 2020, the Office for Civil Rights of the U.S. Department of Education released its Final Rule under Title IX of the Education Amendments of 1972 (“Title IX”).

Title IX is a federal law that protects all persons in the United States from being denied equal access to education on the basis of their sex. Title IX applies to all educational institutions that receive federal funds. Title IX is perhaps best known for its application to college athletics, wherein it requires sports, scholarships, and other athletic benefits be equally available to both male and female student athletes. However, Title IX also applies to every aspect of education, including protecting all students from sexual harassment while involved in an educational activity that is sponsored by a covered school.

The Final Rule implements substantial changes to the applicable procedures related to sexual harassment, the definition of sexual harassment, the grievance process for allegations of sexual harassment, and disciplinary actions. In general, the Final Rule is intended to create a more consistent application for the treatment of complaints and grievances regarding sexual harassment allegations as well so to ensure that additional appropriate protections are provided to both the complainant and the respondent at all stages of the process. A link to the Final Rule can be found here. As detailed below, the Final Rule requires a school to have written policies and procedures regarding sexual harassment that reflect the requirements of the Final Rule.

These changes will become effective on August 14, 2020. It is crucial that any federally funded school carefully review the Final Rule and take appropriate steps to comply with the new rule in time for the Fall 2020 semester. Below is a summary of the key points and primary changes for your consideration.

1. Providing a Definition for Sexual Harassment for Title IX Purposes (Section 106.30, pg. 416)

For the first time, the Department has provided a codified definition of sexual harassment in the context of Title IX. While the codified definitions are new for the purposes of Title IX, the categories of harassment remain the same. The Final Rule defines three types of misconduct on the basis of sex: 1) quid pro quo harassment by a school’s employee; 2) any “unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it effectively denies a person equal educational access”; or 3) any instance of “sexual assault” (as defined in the Clery Act), dating violence, domestic violence, or “stalking” (as defined in the Violence Against Women Act).

The second form of sexual harassment above represents an adoption of the Supreme Court’s definition of sexual harassment as stated in Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 633, 119 S. Ct. 1661, 1666, 143 L. Ed. 2d 839 (1999). It is also notable that the first and third forms of harassment defined above do not require consideration of whether the conduct in question is “severe, pervasive, and offensive,” because those forms of conduct are considered sufficiently serious to constitute a per se deprivation of a person’s equal educational access.

2. Specifying the conditions that activate an individual and institution’s obligation to respond when it receives notice of sexual harassment (Section 106.30, pg. 294)

The Final Rule extends the application of the Title IX protections to locations on or off campus. Title IX now applies to sexual harassment that happens at any location, event, or circumstance but only where a school exercises substantial control over the context of the alleged harassment and the person accused of committing sexual harassment. This includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution, such as a fraternity or sorority house, even if it is not located on the physical campus of the school. This would also include events that occur on field trips, academic conferences, or on a school bus. Title IX does not apply to persons outside of the United States.

The preamble to the Final Rule indicates that nothing in the Final Rule prevents a school from addressing conduct that is outside of the jurisdiction of Title IX such as where the complained of conduct does not meet the definition of sexual harassment announced in the Final Rule, occurred outside the school’s education program or activity, or occurred against a person outside of the United States.

3. Specifying when a school has notice of sexual harassment (Section 106.30, pg. 294)

Any person, whether the alleged victim, or a parent, friend, or bystander, has the right to report sexual harassment to put the school on notice. In all schools, the school must respond whenever the schools Title IX Coordinator has notice. At the college level, notice must be received by an official who has authority to institute corrective measures. This narrows the definition of who can receive notice. In K-12 schools, the school has notice of allegations of sexual harassment for the purposes of Title IX when any employee has notice of sexual harassment. Notice may be written, electronic, or verbal. Schools may designate additional individuals who may receive notice, but the Title IX Coordinator will always put the school on notice.

4. Specifying the school’s mandatory obligation to respond to notice of sexual harassment and make available supportive measures (Section 106.44, pg. 601)

Once a school receives adequate notice, it is prohibited from being “deliberately indifferent” to the allegation of sexual harassment. The School’s Title IX Coordinator is required to promptly and confidentially provide specific information to the individual who reports sexual harassment, including: 1) the availability of supportive measures; 2) the right to file a formal complaint that initiates an investigation into the individual’s sexual assault allegations; and 3) how to file a complaint.

“Supportive measures” are “free, individualized services designed to restore or preserve equal access to education, protect safety, or deter sexual harassment.” (Section 106.30, pg. 561) Examples of supportive measures include counseling, extension of deadlines, modifications of work or class schedules, changes in housing or course locations, campus escort services, and others. Supportive measures may be made available to both the complainant and the accused individual and may be provided even if no formal complaint has been filed. The school is required to give complainants control over the supportive measures that best meet their needs depending on the situation.

The above response outlines the minimum required response that a school’s Title IX coordinator must provide. In all circumstances, the school’s response to an allegation of sexual harassment must not be “clearly unreasonably in light of the known circumstances.” However, if the alleged conduct does not fall under Title IX, then a school is free to address the allegations under the school’s own code of conduct.

5. Establish procedures that must be incorporated into the grievance process in the event of a formal complaint of sexual harassment (Section 106.45, pg. 775)

Schools must follow a grievance process that complies with the procedures set forth in the Final Rule before any disciplinary sanctions may be taken against a respondent. The Final Rule provides clear definitions of “complainant,” “respondent,” “formal complaint,” and “supportive measures” to serve as clear guidelines for the procedures set forth in the Final Rule.

• Complainant – an individual who is alleged to be the victim of conduct that could constitute sexual harassment. A third party may report sexual harassment, but would not be the “complainant” under Title IX. (Section 106.30, pg. 346)
• Respondent – An individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment. (Section 106.30, pg. 415)
• Formal Complaint – a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the school investigate the allegation of sexual harassment. (Section 106.30, pg. 368)

In addition to the clarifying definitions above, the Final Rule provides the following directives regarding the procedures a school must adopt as part of its grievance process:

• The grievance process must treat complainants equitably by providing remedies any time a respondent is found responsible and treat respondents equitably by not imposing disciplinary sanctions without following the grievance process prescribed in the Final Rule.
• The remedies made available through the grievance process must be provided to a complainant when a respondent is found responsible and must be designed to maintain the complainant’s equal access to education. These may include the “supportive measures” addressed above; however, remedies need not be non-disciplinary or non-punitive and need not avoid burdening the respondent.
• The grievance process must include objective evaluation of all relevant evidence, inculpatory and exculpatory, and avoid credibility determinations based on a person’s status as a complainant, respondent, or witness.
• Schools must include reasonably prompt time frames for conclusion of the grievance process, including appeals and informal resolutions, with allowance for short-term, good cause delays or extensions of the time frames.
• Any provisions, rules, or practices other than those required by the Final Rule that a school adopts as part of its grievance process for handling formal complaints of sexual harassment, must apply equally to both parties.

6. Mandatory Training for Title IX Personnel (Section 106.45, pg. 816)

The Final Rule also includes new requirements for Title IX personnel during the grievance process:

• The grievance process requires that all involved Title IX personnel (Title IX Coordinators, investigators, decision-makers, people who facilitate any informal resolution process) must be free from conflicts of interest or bias for or against complainants or respondents.
• As part of their training, all Title IX personnel must receive training on the definition of sexual harassment in the Final Rule, the scope of the school’s education program or activity, how to conduct an investigation and grievance process including hearings, appeals, and informal resolution processes, as applicable, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias.
• The Final Rule permits technology to be made available when appropriate as part of the grievance process and requires schools to ensure that decision-makers receive training on any technology to be used at a live hearing.
• The Final Rule requires a school’s decision-makers and investigators to receive training on issues of relevance, including how to apply the rape shield protections provided only for complainants.
• Schools must post the training materials used for Title IX personnel on their websites or otherwise make those materials available for members of the public to inspect.

7. Mandated live hearings for postsecondary institutions (Section 106.45, pg. 1044)

The Final Rule adds provisions to the “live hearing with cross-examination” requirement for postsecondary institutions, including the requirement that each party’s advisor must be permitted to ask the other party and any witnesses all relevant questions and follow-up questions, including matters of credibility. If requested, the school must provide for the entire live hearing to be available with the parties located in separate rooms such that the parties can see and hear each other. Schools must create an audio or audiovisual recording, or transcript, of all live hearings. K-12 schools or other schools that are not postsecondary institutions are not required to include a live hearing as part of their grievance process, but are permitted to do so.

8. Establish and uniformly apply an evidentiary standard of proof for all grievance procedures. (Section 106.45, pg. 1266)

The Final Rule requires the school to use either the “preponderance of the evidence” standard, or the “clear and convincing evidence” standard, for all formal complaints of sexual harassment (including where employees and faculty are respondents), and mandates the uniform application of that standard in all grievance procedures. The Final Rule requires a written notice of the allegations and an equal opportunity for parties, and their advisors, to review the evidence. The Final Rule mandates the presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process. Following determinations of responsibility, the school must describe or list the range of possible remedies a school may provide a complainant and disciplinary sanctions a school might impose on a respondent.

9. Schools must make available the opportunity to appeal a determination regarding responsibility for the alleged act. (Section 106.45, pg. 1348)

The Final Rule provides that a school must allow either party to appeal a determination on responsibility on specific bases: 1) procedural irregularity that affected the outcome of the matter; 2) newly discovered evidence that could affect the outcome of the matter; 3) a conflict of interest of a Title IX personnel that affected the outcome of the matter.

10. Establish the ability for schools to offer an informal resolution procedure (Section 106.45, pg. 1363)

The Final Rule permits a school to choose to offer mediation or restorative justice processes to informally resolve claims in lieu of a formal hearing, so long as both parties give voluntary, informed, written consent to do so. Schools may not require a student to waive the right to a formal investigation, and may similarly not mandate informal resolution.

11. Prohibition on retaliation of any kind in connection with allegations of sexual harassment (Section 106.71, pg. 1872)

Finally, the Final Rule expressly prohibits any retaliation against any individual in connection with allegations of sexual harassment. The Final Rule specifically provides that charging an individual with a code of conduct violation or other violation that is not related to sexual harassment, but “arises out of the same facts and circumstances” as a report or formal complaint of sexual harassment, constitutes retaliation to the extent that the charge was for the purpose of interfering with any right or privilege otherwise protected by Title IX.

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Since the Department issued the Final Rule, the American Civil Liberties Union (“ACLU”) filed a lawsuit against Betsy DeVos, Education Secretary, Kenneth Marcus, the Assistant Secretary for Civil Rights, and the U.S. Department of Education, challenging the legality of the new provisions. The ACLU claims that the Final Rules go against the language and spirit of Title IX and they intend to use the lawsuit to prevent the provisions from becoming effective later this year. Unless the ACLU is successful, however, the changes implemented by the Final Rule will still go into effect as scheduled on August 14, 2020. The attorneys at Kopon Airdo are closely tracking this legislation and will supplement this report if there are any developments in that regard.

Our office stands ready to assist you to ensure that your institution’s sexual harassment procedures and programs remain compliant with the new requirements set forth in the Final Rule. If you have any questions about any of the new provisions contained in the Final Rule, please do not hesitate to contact our office.