Department of Education Issues New Title IX Regulations on Sexual Harassment
Higher Education Alert 05/13/20 Lindsey W. Davis, Brenna M. Wildt
Last week, the Department of Education (ED) issued its highly anticipated final regulations relating to Title IX of the Education Amendments of 1972 (Title IX). These final regulations dictate how colleges and universities must respond to allegations of sexual harassment and require that every complainant receives proper support, every respondent receives due process, and every Title IX official serves in an impartial manner.
Following an unprecedented public notice and comment period during which the ED received over 124,000 public comments, the final regulations implement sweeping changes to the current Title IX landscape. Among the most notable provisions are the following:
- Narrowed Definition of Sexual Harassment: “Sexual harassment” under Title IX is now more narrowly defined to include (1) quid pro quo; (2) “unwelcome conduct” of a sexual nature that a reasonable person would find “so severe, pervasive, and objectively offensive” that it effectively denies someone equal access to an education program; or (3) sexual assault, dating violence, domestic violence or stalking.
- Obligation to Investigate Off-Campus Sexual Harassment: Providing long-awaited clarity regarding a college’s obligation to investigate and address alleged sexual harassment occurring off campus, the regulations provide that colleges must respond to sexual harassment that occurs in “any building owned or controlled by a student organization that is officially recognized” by the college, namely fraternity and sorority houses. The regulations also clarify that Title IX is not applicable to events that occur outside the United States, including during school study abroad programs.
- Formal Complaint: A “formal complaint” is defined simply as a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment and requesting that the college investigate. The formal complaint process under the final regulations is more accessible to students, and provides for electronic submission to ensure the ability of colleges to carry out their Title IX obligations during the evolving global health crisis. Receipt of a formal complaint triggers the college’s obligation to engage in the formal grievance process discussed below.
- Requirement of Formal Grievance Process with Live Hearing: Upon receipt of a formal complaint, colleges must conduct a grievance process, and this process must provide for a live hearing with cross-examination. Accordingly, colleges may no longer use the less labor-intensive and resource-draining, single-investigator model in which an investigator writes a report and recommends a finding, but no hearing takes place. Colleges are not required to follow a specific time frame for responding to reports of sexual harassment, but must have “reasonably prompt” periods for carrying out each step in the grievance process.
- Virtual Presence: Live hearings may be conducted with all participants in the same location, or with some or all participants appearing virtually with technology that allows everyone to see and hear each other simultaneously.
- Cross-Examination: While discouraged by previous administrations and sexual assault victim advocacy groups, the new regulations require that colleges permit appointed advisors (but not the parties themselves) to conduct cross-examination.
- Relevance: Before participants answer questions, decision makers must determine whether the question is relevant and explain any decision to exclude a question as not relevant. The final regulations protect complainants from being asked about prior sexual history (“rape shield” protection).
- Option for Higher Burden of Proof: Colleges can choose to raise the bar for what constitutes a violation of their campus sexual misconduct policy, so long as they apply the same standard of evidence to all formal complaints of sexual harassment (whether involving employees or students). More specifically, colleges may choose to utilize the “clear and convincing” standard, rather than the “preponderance of the evidence" standard to determine whether alleged conduct merits corrective action.
- Title IX Training Requirements: All Title IX officials, including Title IX Coordinators, must receive training that involves a review of the definition of sexual harassment, the application of Title IX to programs and activities, how to conduct a formal or informal resolution process, and how to “serve impartially.” Colleges must publish these training materials online.
Although released at a chaotic time while colleges, universities, and their students grapple with the impacts of the COVID-19 pandemic, it remains true that covered institutions will need to act promptly to ensure compliance with the regulations, including reviewing and revising their existing policies and grievance procedures by no later than August 14, 2020.
Quarles & Brady is committed to assisting in these efforts and responding to any questions you may have regarding the final regulations or required compliance. For further information, please contact your local Quarles & Brady attorney or: