The Department of Education released the much-anticipated final rules (Rules) governing Title IX compliance in elementary, secondary, and post-secondary education institutions that receive federal financial assistance (Recipients). The Department, which published the proposed changes in November 2018, received more than 124,000 public comments, including significant criticism from education industry groups and advocates for survivors of campus sexual assault. Notwithstanding the public reaction over the last 18 months, the Department stated the objectives of the Rules were to clarify previous standards and ensure the Title IX grievance process is fair to both complainants and respondents. Specifically, Education Secretary Betsy DeVos emphasized the need to make the process more respondent-friendly—which is evidenced by the Rules’ references to the respondent’s due process rights—and less biased toward complainants.
The Department altered key definitions and standards with respect to how and when Recipients are expected to respond to allegations of sexual harassment. Some major changes include:
- A narrower definition of sexual harassment, requiring that any conduct rise to a level that a reasonable person “would find so severe, [and] pervasive, and objectively offensive that it denies a person equal educational access.” Unlike in previous guidance, however, sexual assault, dating violence, domestic violence, and stalking—as defined in the Clery and Violence Against Women Acts—specifically are incorporated into the definition of sexual harassment, and need not rise to the level of severe, pervasive, and objectively offensive.
- The level of “knowledge” triggering a Recipient’s obligation to initiate its response, from constructive or imputed knowledge under the former definition, to actual knowledge under the new Rules. In a shift from the proposed regulations, elementary and secondary schools are considered to be “on notice” when a school employee has been notified of the allegations, while post-secondary institutions may choose whether to have mandatory reporting for all employees or to designate some employees as confidential resources.
- The Department will now assess Recipients’ responses to sex discrimination using a deliberate indifference standard—which considers whether the Recipient’s response was clearly unreasonable in light of known circumstances—as opposed to a reasonableness standard.
- The Rules state that Recipients are required to respond to misconduct that occurs as part of a program or activity in the United States, meaning that that misconduct that occurs during international programs—such as study abroad or service trips—do not trigger the Recipient’s obligation to initiate a response under Title IX.
- Recipients have the ability to determine whether to apply a “preponderance of the evidence” standard or the heightened “clear and convincing standard,” but must apply the selected standard consistently to sexual harassment complaints against both students and employees.
In addition, the Department outlined expectations and requirements regarding the scope of Recipients’ responsibility to respond to complaints of sexual misconduct. For example:
- Recipients’ responsibilities beyond campus extend to circumstances relating to the Recipients’ “education program or activity,” defined to include buildings “owned or controlled by a student organization that is officially recognized by postsecondary institutions,” such as sorority and fraternity houses, and, under certain facts or circumstances, certain off-campus housing that may be neither owned nor operated by a Recipient.
- Recipients must initiate grievance procedures when complainants, including third-party complainants, file a formal complaint. However, Title IX coordinators who receive multiple reports of conduct that could rise to the level of sexual harassment involving a single respondent are not required to commence a formal complaint process.
- The Rules prohibit the previously-used “single-investigator” model, and now require three separate individuals to: (i) receive the report of misconduct; (i) investigate the facts; and (iii) serve as the decision maker as to sanctions and remedies.
- Higher education institutions must provide for a live hearing (defined to include virtual platforms). Additionally, and perhaps most controversially, higher education Recipients must provide the advisor or lawyer for each party with an opportunity to cross-examine the opposing party and witnesses at the live hearing. The parties themselves may not conduct cross-examination. Recipients must accommodate requests from either party to hold the entire live hearing in separate rooms with technology enabling the parties to see and hear each other. K-12 institutions and other non-postsecondary institutions are not required to hold live hearings.
The highly-detailed Rules—and their accompanying explanations—will require institutions to retool their current policies, procedures, and training curricula by August 14, 2020. This compliance overhaul is made all the more onerous given the significant impact that the COVID-19 pandemic has had, and will continue to have, on educational institutions between now and the implementation deadline.
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