June 9, 2020

Last month, the U.S. Department of Education (“Department”) released its long-awaited and controversial final rule regarding sexual harassment and other forms of sex discrimination prohibited under Title IX. These new regulations are effective on August 14, 2020.

The key points of the new rule are outlined below. At the end of this Client Alert is a series of questions and considerations that institutions must address in the very near future in order to be in compliance by the effective date.

Background

The Title IX statute was passed in 1972. The statute says, in its entirety, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. (20 U.S.C. § 1681(a).)

In the years following the passage of Title IX, a line of court decisions emerged that found sexual harassment and sexual assault to be forms of sex discrimination prohibited by Title IX. However, neither the initial implementing regulations promulgated in 1975 nor any subsequent regulations addressed this expanded view. Instead, the Department issued a series of guidance documents, beginning in 1997 and continuing through 2017.

Noting that sub-regulatory guidance does not have the force of law, the Department under Secretary DeVos determined to replace the various guidance documents with formal regulations. The Department issued its proposed rule on November 29, 2018, and set a 60-day comment period, which it subsequently extended twice. It ultimately received more than 124,000 public comments.

The final rule incorporates some changes from the proposed rule, but it follows the general outlines of the proposed rule, including an emphasis on fair and equal treatment of all parties and mandatory live hearings with cross examination and appeal rights in Title IX disputes in postsecondary institutions. The rule, including the preamble outlining the Department’s explanations and rationale, runs through 554 pages in the Federal Register.

Key Elements of the New Rule

Title IX Coordinator

The new rule requires every institution to designate and authorize at least one employee to coordinate its Title IX activities, and that employee must be called the Title IX Coordinator. The institution must notify not only current students and employees but also applicants for admission and employment, unions, and other professional organizations of the Title IX Coordinator’s contact information, including name or title, office address, email address and telephone number. This contact information also must be published in all institutional catalogs and handbooks and displayed “prominently” on the institution’s webpage. The Title IX Coordinator must accept any report of potential sex discrimination received through any published means of contact.

The institution must notify every person entitled to notification of the Title IX Coordinator’s contact information that the institution does not discriminate on the basis of sex in the operation of its education program in accordance with Title IX and 34 C.F.R. Part 106. The notification must also state that the institution’s non-discrimination policy extends to admissions (if applicable) and that questions about Title IX can be addressed to the Title IX Coordinator, the Department’s Assistant Secretary for Civil Rights, or both.

The new rule eliminates the previous regulatory language saying that the Title IX Coordinator is responsible for investigating Title IX complaints. Instead, the Title IX Coordinator manages the Title IX process, with investigative and decision-making authority allocated to others, as described below.

Institutional Obligations; Definitions

Each institution must develop and distribute grievance procedures that comply with the new rule. The institution must provide its grievance procedures and process, including how to file a report or formal complaint about sex discrimination or harassment, to the same audience entitled to receive the Title IX Coordinator contact information.

The institution is obliged to act when it receives “actual knowledge” of allegations of sexual harassment. Under the new rule, actual knowledge in the postsecondary setting is the notice or report of alleged sexual harassment to the Title IX Coordinator or any official “who has the authority to institute corrective measures” on behalf of the institution. The rule specifies that the “mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual as one who has authority to institute corrective measures.”

The final rule provides a specific definition of “sexual harassment” prohibited by Title IX. The definition includes sexual assault, dating violence, domestic violence and stalking, as those terms are used in the Clery Act and the Violence Against Women Act, as well as action by an institution’s employee to condition an institutional benefit or service on unwelcome sexual conduct. The definition also provides that sexual harassment includes “[u]nwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access” to the institution’s education program or activity.

This last sentence represents a change from the language in earlier Department guidance that prohibited conduct that is “so severe, persistent, or pervasive as to deny or limit a student’s ability to participate in or benefit from the school’s programs or activities.” The Department says that it made the change to conform the Title IX regulations with various court decisions.

A person alleging to be the victim of sexual harassment (the “complainant”) may file a report or a formal complaint with the Title IX Coordinator. A formal complaint initiates the institution’s Title IX grievance procedures. The Title IX Coordinator may sign a formal complaint in order to guard against a finding that the institution was deliberately indifferent after learning about alleged sexual harassment.

When the Title IX Coordinator receives a report of alleged sex discrimination or sexual harassment, the Title IX Coordinator is obligated to offer and coordinate appropriate “supportive measures” to both the complainant and the alleged perpetrator (the “respondent”). These supportive measures are intended to preserve each party’s access to the institution’s programs and services without burdening the other party unreasonably, to protect the parties and the larger community, and to deter further harassment.

The new rule makes clear that Title IX protections cover an institution’s “education program or activity.” This term means any locations or events under the institution’s control, including any building controlled by a student organization officially recognized by the institution. Title IX does not extend to off-campus activities or locations outside the institution’s control or to persons or activities outside the United States.

The institution must ensure that the Title IX Coordinator(s), investigator(s), decision maker(s) and other parties involved in handling a report or formal complaint do not have a conflict of interest or any bias for or against any party. Each person must be properly trained regarding the definition of sexual harassment and the scope of the institution’s education program or activity, how to conduct an investigation, how to conduct hearings and appeals, and how to remain impartial throughout the process. The training materials must be free of sex stereotypes.

Grievance Procedures

A primary theme in the new rule is that institutions must treat both complainants and respondents equitably. A respondent is entitled to a presumption of innocence unless a determination of responsibility is made, in which case the complainant is entitled to remedies that restore or maintain equal access to the institution’s education program or activity. All evidence, the collection of which is the burden solely of the institution, is shared with both parties and must be evaluated objectively.

The grievance procedures must establish reasonable timeframes for conducting the investigation and concluding the process. They also must describe the range of possible sanctions or remedies that the institution may implement if a determination of responsibility is made and the procedures and bases for either party to appeal.

The grievance procedures also must announce the standard of evidence that the institution uses to determine responsibility, which can be either the preponderance of the evidence standard (i.e., more likely than not) or the clear and convincing evidence standard (i.e., substantially more likely than not; highly probable). The institution must apply this same standard for resolving all formal complaints, whether involving students or employees.

Once a formal complaint is filed, the institution must provide written notice to all known parties, including the grievance process and any informal resolution process that the institution makes available, as described below. The notice must detail the allegations that could constitute sexual harassment, including, if known, the identities of the parties and the date and location of the incident. The notice also must state that the respondent is presumed not to be responsible until a determination is made and provide any code of conduct language prohibiting making or filing false statements. Finally, the notice must advise both parties of their right to have an advisor of their own choosing, who may be an attorney, and to inspect evidence in the case.

Investigation

The institution must investigate allegations in a formal complaint. If it determines that the alleged conduct would not constitute sexual harassment even if true, or if the alleged activity took place outside the United States, the institution must dismiss the formal complaint. Any such dismissal, however, does not preclude disciplinary or other action pursuant to the institution’s code of conduct.

In conducting an investigation, the institution must provide both parties equal opportunity to present fact and expert witnesses and evidence to support their positions, with no restrictions on the parties’ ability to discuss the investigation. Both parties must have equal opportunity to attend any proceedings, along with their advisor. The institution must notify any party expected to participate in any proceeding of the date and purpose of the proceeding with sufficient time for the party to prepare.

Prior to completing an investigative report, the institution must provide each party and the party’s advisor with all of the evidence obtained in the investigation and at least 10 days to review and comment in writing. The investigator then prepares an investigative report summarizing the relevant evidence that is provided to the parties at least 10 days prior to a hearing. Each party has the right to file a written response to the investigative report.

Hearing

Grievance procedures at postsecondary institutions must include provisions for a live hearing. Either party can request that the live hearing take place with the parties in separate rooms connected with technology that allows the decision maker(s) and all parties to see and hear one another. At the institution’s discretion, the live hearing also can be conducted virtually.

At the live hearing, which must be recorded or transcribed, each party’s advisor is permitted to ask the other party and any witnesses any relevant questions, including follow-up questions and questions challenging credibility. Cross-examination is oral and direct by the advisor, never by a party. The decision maker(s) will determine the relevance of each question.

Following the hearing, the decision maker(s) will issue a written “determination regarding responsibility.” The document must include the following elements:

1. the allegations that could constitute sexual harassment;
2. a description of the procedural steps undertaken, including notifications to parties, interviews and site visits, methods used to gather evidence, and hearings;
3. findings of fact that support the determination regarding responsibility;
4. conclusions about the application of the institution’s code of conduct to the facts;
5. an explanation regarding the result of each allegation, with a determination regarding responsibility, any disciplinary actions against the respondent, and any remedies to be provided to the complainant; and
6. procedures and bases for appeal.

The institution must provide the determination regarding responsibility to both parties simultaneously. It is final on the day the appeal deadline has passed if no appeal is filed or on the day the institution notifies the parties of the written result of an appeal, if one is filed. The Title IX Coordinator is responsible for implementing any remedies.

Appeal

A postsecondary institution must offer both parties the right to appeal any determination regarding responsibility and any decision to dismiss a formal complaint. An appeal must be allowed based on procedural irregularities that impacted the outcome, new evidence that was not available prior to the decision that could impact the outcome, or conflict of interest or bias on the part of any institutional representative. The institution may allow appeal on additional grounds, so long as the opportunity is available to both parties.

When an appeal is filed, the institution must notify all parties in writing, identify who will hear and decide the appeal (which cannot be the Title IX Coordinator, the investigator(s), or the decisonmaker(s) previously involved in the matter), and ensure that the appeal decider(s) is free of conflict of interest or bias and has been properly trained. Both parties must have the right to submit written statements regarding the hearing outcome, which the appeal decider(s) will consider before preparing a written decision explaining the result and rationale of the appeal that the institution must provide to both parties simultaneously.

Informal Resolution Process

An institution may offer, but may not compel, an “informal resolution process” once a formal complaint has been filed. When the parties voluntarily agree in writing to an informal resolution process, the institution must provide both parties with the allegations; explain how the process works and any impact on the parties’ ability to resume a formal complaint arising from the same allegations; and describe any consequences from participating in an informal resolution. Either party has the right to withdraw from the informal process prior to a resolution and resuming the formal complaint.

Recordkeeping Requirements

The institution must maintain all relevant records regarding sexual harassment allegations and investigations for at least seven years. Relevant records include investigations and any required recording or transcription, determinations regarding responsibility, disciplinary actions, remedies provided, appeals, and informal resolutions.

For each report of sexual harassment or formal complaint, the institution must document and maintain for seven years any supportive measures it provided, the basis on which it determined that its response was not deliberately indifferent, and measures that it took to restore or preserve access to its education program or activity. If the institution did not provide supportive measures, it must document why its response was not clearly unreasonable given the known circumstances.

The institution also must maintain for at least seven years all materials used to train the Title IX Coordinator, investigators, decision makers and persons who facilitate informal resolutions. All of these training materials also must be publicly available on the institution’s website.

Retaliation

Neither the institution nor any person may retaliate against any other person for asserting that person’s Title IX rights, filing a report or formal complaint, or either participating or refusing to participate in any Title IX proceeding. The institution must keep Title IX proceedings confidential except as permitted by FERPA or required by law.

A party does not retaliate simply by asserting the party’s First Amendment rights. Additionally, charging a person with a code of conduct violation for filing materially false statements in bad faith in a Title IX proceeding is not retaliation.

Actions Institutions Must Take Now

As noted above, the new Title IX regulation is effective August 14, 2020, in little more than 60 days. Although legal challenges already have been initiated, there is no certainty that the effective date will be pushed back. Accordingly, institutions must begin immediately to make the policy and personnel changes necessary to comply. Among the most immediate considerations are the following:

• Who is/are the Title IX Coordinator(s)?
  • What are his/her/their qualifications?
  • Where is the Title IX Coordinator’s contact information disclosed to students and employees?
• Who will conduct investigations?
  • How is the investigator chosen?
  • What are his/her/their qualifications?
• Who is/are the decision maker(s) who will conduct the hearing and render the determination regarding responsibility?
  • How are the decision maker(s) chosen?
• What is the process for ensuring that the Title IX Coordinator, investigator(s) and decision maker(s) do not have a conflict of interest or bias regarding a party?
• How are the Title IX Coordinator, investigator(s) and decision maker(s) trained for their respective roles?
  • How often are they trained?
  • How does the institution ensure that the training materials are free of sex stereotypes and promote impartial investigations and adjudications?
  • Are the training materials publicly available on the institution’s website?
• Where are the nondiscrimination policy and the Title IX grievance procedures published?
• How does the institution ensure that both current students and employees and applicants for admission or employment receive notice of the nondiscrimination policy and the Title IX grievance procedures?
• How will the institution handle reports and grievances regarding alleged conduct that took place outside its education programs or activities?
• What standard of proof has the institution adopted?
• How will the institution handle a request by any party for any cross-examination to occur with the parties in separate rooms and with appropriate technological connections with each other and the decision maker(s)?
• Has the institution established its grounds for an appeal?
• Who will hear the appeal, what are his/her/their qualifications, and how are he/she/they trained?
• Does the institution offer an informal resolution process for handling formal complaints?
  • If yes, how are the requirements communicated to the parties?
  • What are the potential consequences to the parties, and what records will be maintained?
• What formal recordkeeping processes has the institution adopted, and who is responsible for maintaining the records?

Maynard Cooper is a full-service firm with attorneys experienced in all regulatory and operational aspects of higher education, including federal and state oversight, accreditation, employee and benefits issues, and real estate concerns.

Roger Swartzwelder advises regionally and nationally accredited institutions of higher education regarding legal, administrative, regulatory, and accreditation matters.

Tres Cleveland serves as Chair of the Education practice. He defends and advises educational institutions and universities across the country.

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This Client Alert is for information purposes only and should not be construed as legal advice.
The information in this Client Alert is not intended to create and does not create an attorney-client relationship.