Department of Education Issues Controversial Title IX Regulations

On May 6, 2020, the Department of Education released final regulations under Title IX of the Education Amendments of 1972 with an effective date of August 14, 2020. With many substantive changes, including elimination of the “single-investigator model” and mandatory live hearings that include cross-examination conducted by advisors, the final regulations will require most higher education institutions to substantially revise their sexual misconduct policies and procedures. In addition, as victims-rights advocates express concern that the new regulations will chill reporting and formal complaints of sexual misconduct, institutions should consider how their codes of conduct and grievance procedures can address conduct outside of the Title IX framework. For example, a sexual assault that is alleged to have occurred in a study abroad program would not fall under Title IX, but it could be addressed under a code of conduct that prohibits assault or other acts of violence. Similarly, harassment that is alleged to have occurred at a conference unaffiliated with the university that would no longer fall under Title IX, could be addressed under a code of conduct that prohibits bullying, coercion, intimidation, abusive behavior, or unprofessionalism.

First, the regulations require a higher education institution to dismiss any Title IX complaint that does not meet the new, narrower definition of sexual harassment, which covers only: (1) quid pro quo sexual harassment by an employee and not a student or other affiliate of the university; (2) hostile environment harassment where the conduct is severe, pervasive, and objectively offensive (rather than “severe or pervasive”) and effectively denies a person equal access to the education program or activity; and (3) sexual assault, dating violence, domestic violence, and stalking. Sexual assault is defined as an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation. Dating violence, domestic violence, and stalking are defined in the Violence Against Women Act. Notably, the new regulations do not define “consent.” The following are examples of sexual misconduct that are likely excluded from the definition of sexual harassment: quid pro quo sexual harassment against a student by a team captain, student organization leader, or graduate student in the same department; a single instance of sexual exploitation (because it is not both severe and pervasive); and a single incident of sexual contact that is for the purpose of humiliation rather than sexual gratification (the standard used in the uniform crime reporting system).

Second, under the new regulations, Title IX only covers sexual harassment occurring in the United States. Title IX cases that allege conduct that occurred outside of the United States must be dismissed. Therefore, misconduct that occurs in a study abroad program is not a violation of Title IX, although it may violate other policies.

Third, the regulations limit Title IX sexual harassment cases to education programs or activities over which the institution exercises substantial control or those occurring in any building owned or controlled by a student organization that is officially recognized by a postsecondary institution. As a result, misconduct that occurs in private off-campus housing, at a third-party research conference, or at a fraternity house that is not officially recognized is not a violation of Title IX, although it may violate other policies.

Fourth, the Department of Education will only hold institutions accountable if they respond with deliberate indifference (in a manner that is clearly unreasonable in light of the known circumstances) when they have actual knowledge of sexual harassment (notice of sexual harassment provided to the Title IX Coordinator or any official who has authority to institute corrective measures on behalf of the institution). This means that universities can re-visit their mandatory reporter policies, which could result in a significant reduction in Title IX training across campuses, although broad prevention and awareness programs are still required under the Violence Against Women Act. Although the Department of Education has contracted Title IX’s reach, higher education institutions are still free to address conduct through other policies and procedures that are not under the purview of the Department of Education.

Given the possibility that the final regulations may be overturned by Congress or a future administration, it would benefit institutions to streamline their Title IX policies and procedures to make future modifications easier. For example, if each campus of a university has its own procedures for addressing sexual misconduct under Title IX, the university should consider consolidating them. Streamlined policies will also help with compliance and administration of Title IX, because there are so many costly and complex requirements prescribed by the final regulations.

Below is a brief summary of the most substantive changes, all of which apply to student and employee Title IX cases:

1. Required live hearings, with the option of conducting the hearing virtually or having the parties in separate rooms as long as they can simultaneously see and hear each other; hearings must be recorded or transcribed;
2. Cross-examination at the hearing conducted by the parties’ advisors directly, orally, and in real time, and subject to relevance determinations by the decision-maker(s); all parties and witnesses must be subject to cross-examination and statements may not be relied upon in decision-making if not subject to cross-examination;
3. Required selection of an advisor of each party’s choice, who may be an attorney, and if a party does not have an advisor who can participate in a live hearing and conduct cross-examination, then the institution must provide an advisor at no fee or charge;
4. Required dismissal of Title IX complaints that do not meet the definition of sexual harassment or when the conduct did not occur in the United States or in an education program or activity;
5. Greater emphasis on supportive measures, which are available in all cases whether or not a formal complaint is filed and when a complaint must be dismissed because the allegations fall outside of Title IX;
6. Availability of voluntary informal resolution in all cases in which a formal complaint is filed, except for allegations that an employee sexually harassed a student;
7. New training requirements for investigators, decision-makers, and any person who facilitates an informal resolution process;
8. Standard of evidence may be preponderance of the evidence or clear and convincing evidence, as long as the same standard is used for all complaints of sexual harassment;
9. Deliberate indifference standard will be applied for institutional accountability.
10. Preemption of conflicting state law.