An Overview of the US Department of Education's Final Title IX Regulations Released May 6

Under Title IX, education programs and activities that receive federal financial assistance are prohibited from discrimination on the basis of sex (20 U.S.C. 1681(a)). Regulations implementing this law since the 1970s have never specifically addressed sexual harassment or assault or due process in Title IX grievance processes related to sexual harassment. New regulations now focus on those issues.

On November 16, 2018, and after the Department of Education undertook an extensive review of the federal civil rights law, the US secretary of education released proposed amendments to its Title IX regulations. They appeared again in January and February 2019, requesting comments by February 15, 2019, then again on January 20, 2020, calling for comments before February 18, 2020. Finally, on May 6, 2020, the Department of Education released the new regulations, which describe what constitutes sexual harassment under Title IX, what triggers a school’s legal obligation to respond to incidents of sexual harassment, and how a school must respond.

A School’s Obligation to Respond to Allegations Of Sexual Harassment

The new regulations now set forth procedures that schools are required to follow when responding to allegations of sexual harassment and provide clarity on how sexual harassment is defined (34 C.F.R §§ 106.30 and 106.44). Specifically, schools with actual knowledge of sexual harassment are now required to respond in a manner that is not deliberately indifferent (i.e., clearly unreasonable in light of the known circumstances). In the higher education context, notice of the allegations of sexual harassment to a Title IX Coordinator or other official who has authority to institute corrective measures will give the school “actual knowledge” and trigger a response consistent with the regulations.

Sexual harassment is now narrowly defined as one of the following:

1. An employee conditioning an educational aid, benefit, or service on an individual’s participation in unwelcome sexual conduct (quid pro quo harassment)
2. Unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity
3. Sexual assault as defined in the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act), which definition includes rape, fondling without consent, incest, or statutory rape (34 C.F.R. 668.46(a))

The new regulations further clarify that a school is only responsible for responding to allegations of sexual assault occurring within its own program or activity (consistent with the Title IX statute, which prohibits schools from subjecting individuals to discrimination “under any education program or activity” and “in the United States”). While the Clery Act includes stalking, dating violence, and domestic violence as reportable crimes under that Act, the new Title IX regulations do not include these in their definition of sexual harassment. The intersection of the Clery Act as amended by the Violence Against Women Reauthorization Act and its regulations is beyond the scope of this alert, but important for institutions of higher education.

Section 106.44: Addresses Procedures Associated With Responding to Complaints of Sexual Harassment

In the absence of a formal complaint, an institution of higher education acts reasonably if it offers and implements supportive measures designed to effectively restore or preserve the complainant’s access to the recipient’s education program or activity.

A school may remove a respondent from its education program or activity on an emergency that is based on an individualized safety and risk analysis, with notice to the respondent and an opportunity to challenge the decision. This section also permits a school to place a non-student employee respondent on administrative leave during the pendency of an investigation.

Section 106.45: Addresses Grievance Procedures in Response to Formal Complaints of Sexual Harassment

The basic requirements for formal complaint grievance procedures are:

1. That they treat complainants and respondents equitably. For the complainant, this means that if a finding of responsibility for sexual harassment has been made against the respondent, remedies restore or preserve access to the school’s education program or activity. For the respondent, an equitable resolution means that due-process protections are included before the imposition of any disciplinary sanctions.
2. An objective evaluation of all relevant evidence, including both inculpatory and exculpatory evidence. Credibility determinations must not be based on a person’s status as a complainant, respondent, or witness.
3. Any person designated by the school as a coordinator, investigator, or decision maker must not have a conflict of interest or bias for or against complainants or respondents, generally, or an individual complainant or respondent. The school must ensure that designees receive training on the definition of sexual harassment and how to conduct an investigation and grievance process, including hearings that protect the safety of students, ensure due process protections for all parties, and promote accountability. Any materials used for training may not rely on sex stereotypes and must promote impartial investigations and adjudications of sexual harassment.
4. A 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.
5. Reasonably prompt timeframes for conclusion of the grievance process, including any appeals as well as a process that allows for delays or extensions for good cause.
6. A description of the range of possible sanctions and remedies following a determination of responsibility.
7. A description of the standard of evidence to be used to determine responsibility.
8. A description of the procedures and permissible bases for an appeal by either party if the school offers an appeal.
9. A description of the range of supportive measures available to complainants and respondents

Upon receipt of a formal complaint, the school must give written notice to the known parties describing the grievance process and the allegations constituting a potential violation of the school’s code of conduct, including sufficient details and time to permit the respondent to prepare for an initial interview. This written notice must include a statement that the respondent is presumed not responsible, and it must inform the parties that they may review evidence. It also must warn the parties of any provision in the school’s code of conduct that prohibits false statements or providing false information during the grievance process.

The investigation of a formal complaint must ensure the burden of proof rests on the school, not the parties. Both parties are to have an equal opportunity to present witnesses and other evidence. There can be no “gag order.” Both parties are allowed to have an advisor of their choice accompany them in any meeting or proceeding, but the school may establish restrictions regarding the extent to which the advisor may participate as long as the restrictions apply to both parties. Institutions of higher education must provide a live hearing.

At the live hearing, the decision maker must permit cross-examination of the parties and witnesses by the other. The cross-examination must be conducted by the party’s advisor of choice, notwithstanding the discretion of the school to otherwise restrict the extent to which advisors may participate in the proceedings. If a party does not have an advisor, the school must provide an advisor who is aligned with that party to conduct the cross-examination. Cross-examination must exclude evidence of the complainant’s sexual behavior or predisposition, unless evidence is offered to prove that someone other than the respondent committed the conduct complained of or if the evidence concerns specific incidents of the complainant’s sexual behavior with respect to the respondent and is offered to prove consent.

Prior to the conclusion of the investigative report, the investigator must share the evidence gathered and whether or not it will be used in the report, and the parties are to be given time to respond to the evidence in writing. The school must make all evidence reviewed in the investigation available to the parties for use in the hearing, including for purposes of cross-examination.

There must be an investigative report that fairly summarizes relevant evidence, and at least 10 days prior to a hearing regarding responsibility, a copy of the report must be provided to the parties for their review and written response.

The determination of responsibility must be made by the decision maker(s), who cannot be the same person(s) as the Title IX Coordinator or the investigator(s). The determination must be in writing and shared with the parties simultaneously. It must apply either the “preponderance of the evidence” or the “clear and convincing evidence” standard, although the school may employ the preponderance of the evidence standard only if the recipient uses that standard for conduct code violations that do not involve sexual harassment (but carry the same maximum disciplinary sanction). The same standard that is used for complaints against employees and faculty must be used against students.

The written determination must identify the section of the code of conduct alleged to have been violated; describe the procedural steps taken from receipt of the complaint through determination, including notice, interviews, site visits, methods used to gather other evidence and hearings held; set forth findings of fact supporting the determination; conclusions applying the code of conduct to the facts; a statement of and rationale for the result as to each allegation, any sanctions imposed on the respondent and any remedies provided to the complainant; and the procedure for and permissible bases for appeal, if any. This determination is to be provided to the parties simultaneously.

If the school’s procedures include an appeal from the determination of responsibility, it must be available to both parties equally. The decision maker of the appeal may not be the same as any investigator or decision maker who participated in the process prior to the appeal. The parties must be provided a reasonable opportunity to submit a written statement in support of or challenging the outcome. The appeal outcome must be in writing and provide the rationale for the decision. A copy is to be sent simultaneously to both parties.

At any time prior to a responsibility determination, the school may facilitate an informal resolution process such as mediation that does not involve full investigation and adjudication, with voluntary, written consent by both parties.

Finally, with regard to the sexual harassment grievance process, there are recordkeeping requirements for three years covering each investigation, including a determination of responsibility, sanctions imposed, remedies provided, whether there was any appeal and informal resolution, and all materials used to train coordinators, investigators, and decision makers with regard to sexual harassment. All records are to be made available to complainants and respondents.

If you have any questions regarding the content of this alert, please contact Penny Mason, partner, at pmason@barclaydamon.com; Brittany Lawrence, counsel, at blawrence@barclaydamon.com; or another member of the firm’s Higher Education Team.