U.S. Department of Education Issues Final Rule on Title IX Compliance

May 7, 2020

Educational institutions that receive federal financial assistance, including colleges, universities, and many K-12 schools, have until August 14, 2020 to comply with the long-awaited final regulations issued yesterday by U.S. Secretary of Education Betsy DeVos. The controversial regulations will require most educational institutions to revisit their current grievance procedures for addressing complaints of sex discrimination and sexual harassment. Many commentators predict that stakeholders will challenge the new regulations in court, which may postpone the effective date.

We offer a question and answer summary of the more significant aspects of the Final Rule and summaries from the Department of Education’s Office for Civil Rights (“OCR”).

How does the Final Rule define "sexual harassment"?

Under the Final Rule sexual harassment is defined more narrowly than prior OCR guidance, and means:

  1. A school employee conditioning education benefits on participation in unwelcome sexual conduct (also known as quid pro quo harassment); 

  2. Unwelcome conduct that a reasonable person would determine is so severe and pervasive, and objectively offensive, that it effectively denies a person equal access to the school’s education program or activity; or

  3. Sexual assault as defined in the Clery Act (“any sexual act directed against another person, without the consent of the [person], including instances where the [person] is incapable of giving consent”), dating violence, domestic violence, or stalking as defined in the Violence Against Women Act(“VAWA”).

When is a school considered to be on notice of sexual harassment?

Title IX requires schools to take action when they are on “notice” of a report of sexual harassment or have “actual knowledge” of it. 

  • For colleges and universities, the Final Rule provides that “actual knowledge means notice of sexual harassment or allegations of sexual harassment to a school’s Title IX coordinator or any official of the school who has authority to take corrective measures on behalf of the school.”

  • For elementary or secondary schools, “actual knowledge” means notice to any employee of the school.

Are schools required to respond to all reports of sexual harassment?

No. The Final Rule limits a  school’s obligation to respond in several important respects:

  • The Final Rule requires schools to respond only when sexual harassment is alleged to have occurred in an education program or activity, against a person in the United States. 

  • “Education program or activity” is limited to include “locations, events, or circumstances over which the school exercised substantial control over both the respondent and the context in which the sexual harassment occurs.”  

  • Programs or activities specifically include conduct occurring in any building owned or controlled by a student organization officially recognized by a college or university (i.e. fraternity or sorority houses). 

  • In addressing complaints, schools are never required to deprive an individual of rights guaranteed under the U.S. Constitution. 

  • Allegations of discrimination and harassment that fall outside of Title IX’s jurisdiction (as defined under the Final Rule), may be addressed by a school’s codes of conduct. 

Are there training or record-keeping requirements under the new Rule?

Yes. Schools must provide training to those responsible for carrying out Title IX policies and must post on their websites all materials used to train Title IX personnel. (If the school does not maintain a website, it must make these materials available for public inspection.) 

Schools also must document and keep records of all sexual harassment reports and investigations.

Does the Final Rule address how harassment may be reported? 

Yes. Each school must designate a Title IX coordinator and notify all applicants for admission and employment, students, parents or guardians, employees and unions of the name, title and contact information of the Title IX coordinator. Any person may report sex discrimination or harassment in person or by mail, phone, email or any other means that results in the Title IX coordinator receiving the report.

When may a school be liable for violating Title IX?

Title IX imposes liability on schools that display “deliberate indifference” to reports of sexual harassment. To avoid liability, schools must “promptly” respond to reports of sexual harassment in a manner that is not “clearly unreasonable in light of the known circumstances.”  Schools must, at a minimum –

  • Offer supportive measures to the complainant together with information about filing a formal complaint;

  • Consider the complainant’s wishes regarding supportive measures; and

  • Follow a grievance process before imposing sanctions on a respondent (see below).

When are investigations required under the Final Rule?  

The Final Rule requires schools to investigate only after receiving a “formal complaint” of sexual harassment. 

  •  “Formal complaints” are documents that: (i) are either filed by a complainant (or their parent or guardian), or signed by a Title IX coordinator alleging sexual harassment against a respondent; and (ii) request that the school investigate.

  • At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of the school with which the formal complaint is filed.

  • In the absence of a formal complaint, an allegation may be addressed through the school’s own code of conduct.

Does the Final Rule impose any new requirements on the conduct of investigations?

Yes. 

  • The Final Rule prohibits access, consideration, use or disclosure of a party’s medical or mental health records (records maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional, acting or assisting in that capacity), and which are made and maintained in connection with the provision of treatment to the party. A party may voluntarily consent to the disclosure of such information, if such consent is offered in writing.

  • Schools may not utilize a “single investigator” model; the decision-maker may not be the same person as the investigator.

Must schools conduct hearings as part of their grievance procedures?

For elementary and secondary schools, no. For post-secondary institutions, yes, and the hearings must be “live hearings” (see below).

Are there requirements for how hearings are to be conducted at the post-secondary level?

Yes. Post-secondary schools must provide for a live hearing and an opportunity for cross-examination. The Final Rule includes the following requirements for live hearings:

  1.  An opportunity for the party’s advisor (not the party) to ask the other party and any witnesses all relevant questions and follow-up questions, including those pertaining to credibility.

  2. Either party may request that the hearing be conducted in separate rooms with technology enabling the decisionmaker(s) and parties to simultaneously see and hear the party answering questions.

  3. Cross examination must focus only on questions that are relevant to the allegations in dispute. Before a party or witness answers a question on cross-examination, the decision maker must determine that the question is relevant (and explain a decision to exclude a question as not relevant). 

  4. For parties who do not have an advisor, the school must provide, free of charge, an advisor of the school’s choice to conduct cross-examination on behalf of that party. The advisor may be an attorney but this is not required.

  5. If a party or witness does not submit to cross-examination at the hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination of responsibility, provided, however, that the decision-maker(s) cannot determine whether there has been a policy violation based solely on a party’s or witness’s absence or refusal to answer.

  6. Schools must create an audio or audiovisual recording, or transcript of the hearing and make it available to the parties for inspection and review.

Are there required grievance procedures for elementary and secondary schools?

Yes. While K-12 schools are not required to convene hearings, they must offer each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the responses, and allow for additional, limited follow-up questions from each party. This must occur after the school has sent the investigative report to the parties and before there has been a determination of responsibility.

What is a rape shield protection and how does it apply here?

The Final Rule maintains so-called rape shield protections for complainants, but has been revised to provide that questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence are offered to: (i) prove that someone other than the respondent committed the conduct alleged by the complainant; or (ii) the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.

Are schools required to adhere to any particular standard of evidence?

The Final Rule requires the school’s grievance process to state whether the standard of evidence to be used to determine responsibility is the preponderance of evidence standard or the clear and convincing evidence standard. The standard used in complaints against students must be the same as the standard for complaints and employees, including faculty. Schools must presume that a respondent is not responsible until after the adjudication of the allegations, and only if the school satisfies its burden of establishing the student’s responsibility.

The Final Rule requires the school’s grievance process to state whether the standard of evidence to be used to determine responsibility is the preponderance of evidence standard or the clear and convincing evidence standard. The standard used in complaints against students must be the same as the standard for complaints and employees, including faculty. Schools must presume that a respondent is not responsible until after the adjudication of the allegations, and only if the school satisfies its burden of establishing the student’s responsibility.

Yes. A school must offer both parties the opportunity to appeal from a determination of responsibility, and from a school’s dismissal of a formal complaint. At a minimum, schools must permit appeals on the following bases: 

  1. Procedural irregularity that affected the outcome of the matter; 

  2. New evidence that was not reasonably available at the time the determination was made and that could affect the outcome of the matter; and/or

  3. The Title IX coordinator, investigator, or decision-maker had a conflict of interest or bias that affected the outcome of the matter.

Can schools offer informal resolution as a mechanism?

Yes. Schools may choose to offer informal resolution if both parties give voluntary, informed, written consent, except that informal resolution is not permitted to resolve allegations that an employee sexually harassed a student. A school may not require that parties participate in informal resolution, and may not offer informal resolution unless a formal complaint is filed. Any party may withdraw their agreement to informal resolution at any time. 

How does the Final Rule define retaliation?

The Final Rule provides –

  • No school or person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in a Title IX investigation, proceeding, or hearing.

  • The exercise of First Amendment rights does not constitute retaliation.

  • Retaliation includes charges against an individual for code of conduct violations (other than sex discrimination) arising out of the same facts or circumstances as a report or complaint of sex discrimination or harassment and brought for the purpose of interfering with any right or privilege under Title IX (except that conduct violations for making materially false statements in the course of a grievance proceeding does not constitute retaliation).

For further information contact Allyson Kurker or Margaret H. Paget at Kurker Paget LLC.