Updated Title IX Regulation Lays Out Protections for the Accused

On May 6, 2020, the U.S. Department of Education released its Final Title IX Regulation. These regulations are an adaptation of the federal rules and took effect August 14, 2020. The final regulations specify how recipients of Federal financial assistance covered by Title IX, including elementary and secondary schools as well as postsecondary institutions, (collectively referred to as “recipients” or “schools”), must respond to allegations of sexual harassment consistent with Title IX’s prohibition against sex discrimination. The final regulations represent the U.S. Department of Education’s (the Department) interpretation of a recipient’s legal obligation. This is the first time the focus is on precise legal compliance requirements governing the schools rather than best practices, recommendations, or guidance.

What Was Wrong With the Old Title IX Process?

Previously, the Department of Education has not provided educational institutions with a set framework to follow in response to allegations of sex-based discrimination including sexual assault and sexual harassment. While the Department has previously issued guidance that drew school’s attention to the need to take sexual harassment seriously under Title IX; this guidance lacked specificity in how to meet Title IX obligations while ensuring due process protections for complainants and respondents. This missing guidance led to increased numbers of lawsuits and complaints filed with the Office of Civil Rights against schools where allegations were being made that the school mishandled Title IX sexual harassment cases resulting in injustice for both complainants and for respondents.

These final regulations come after the Department determined the current regulations did not provide clear direction for how schools must respond to allegations of sexual harassment because the previous regulations did not reference sexual harassment at all. Similarly, the Department determined that previous guidance was insufficient to provide clear direction on this subject because “it was not legally enforceable, created confusion and uncertainty among recipients, and did not adequately advised recipients how to uphold Title IX’s non-discrimination mandate while at the same time meeting requirements of constitutional due process and fundamental fairness.” Therefore, the Department issued the final regulations which address sexual harassment, “in an effort to better align the Department’s Title IX regulations with the text and purpose of Title IX, the U.S. Constitution, Supreme Court precedent and other case law, and to address the practical challenges facing students, employees, and recipients with respect to sexual harassment allegations in education programs and activities.”

What’s New?

Addressing the Basics of the New Title IX Regulation

The final regulations include an expanded definition of sexual harassment with the purpose to ensure that complaints trigger a school’s response obligation without needing to evaluate severity, pervasiveness, offensiveness, or denial of equal access. In short, this means the definition now allows schools to act without having to do a mini investigation to determine if they are required to act. The final regulations define sexual harassment as “severe, pervasive, and objectively offensive” conduct that effectively denies a person equal educational access.

Additionally, when determining what triggers a response from the school, the final regulations adopted the standard of “actual knowledge.” Actual knowledge includes notice to any elementary or secondary school employee, while at the postsecondary level notice must be made specifically to the Title IX Coordinator (or appropriate person with authority to respond). Specifying who reports are made to furthers the Department’s policy goals of “ensuring that elementary and secondary schools respond whenever a school employee knows of sexual harassment or allegations of sexual harassment, while respecting the autonomy of students at postsecondary institutions to decide whether or when to report sexual harassment”

After a school is given notice of actual knowledge, the school is prohibited from acting with “deliberate indifference.” If a school acts with deliberate indifference, the school itself may be sued in a private action under Title IX for engaging in discrimination. Previously guidance was given to schools that was closer to constructive notice and strict liability. This created a culture that anytime an allegation was made, schools were pressured to respond (and in close calls make a finding against the accused) for fear of being sued in a private action, investigated by OCR, or lose their federal funding. Using the deliberate indifference standard in the final regulations while specifying the actions school’s must take in response to every instance of sexual harassment “ensures that recipients respond to sexual harassment by offering supportive measures designed to restore or preserve a complainant’s equal educational access without treating a respondent as responsible until after a fair grievance process.”

Added Protections to Accused Students

Under the old guidance, schools were enforcing a standard of preponderance of the evidence to hold an accused student responsible for misconduct. This standard required only that it was more likely than not that misconduct occurred. Accused students were being found responsible and having life changing consequences based on poor investigations and low standards of proof. The final regulations now will allow schools to choose their standard of evidence between preponderance of the evidence or clear and convincing. Whichever standard a school chooses, it must be the same for both employee and student misconduct claims.

Advisors have long been calling for changes that accused students were not being afford, and would benefit all parties in the process. For example, accused students will now be entitled to receive written notice of the allegations against them and be informed of their right to have an advisor which maybe an attorney. Further, accused students will be entitled to access all evidence against them whether it is helpful or hurtful to their case. Moreover, accused students will now be presumed innocent placing the burden on the school to seek the truth by collecting evidence through the investigation process. Additionally, postsecondary schools will now be required to hold live hearings where both parties are allowed cross examination through their advisors.

Summary of the New Grievance Process Requirements
There are ten groups of provisions under the federal rule that together are intended to provide a standardized framework that governs school’s responses to formal complaints of sexual harassment under Title IX. Generally, the provisions state:
Acknowledges a school’s treatment of a complainant, or a respondent, could constitute sex discrimination prohibited under Title IX.
Schools are required to adopt a grievance process that:
treats complainants and respondents equitably by recognizing the need for complainants to receive remedies where a respondent is determined responsible and for respondents to face disciplinary sanctions only after a fair process determines responsibility;
objectively evaluates all relevant evidence both inculpatory and exculpatory, and ensures that rules voluntarily adopted by a recipient treat the parties equally;
requires Title IX Coordinators, investigators, decision-makers, and persons who facilitate informal resolutions to be free from conflicts of interest and bias and trained to serve impartially without prejudging the facts at issue;
presumes the non-responsibility of respondents until conclusion of the grievance process;
includes reasonably prompt time frames for the grievance process;
informs all parties of critical information about the recipient’s procedures including the range of remedies and disciplinary sanctions a recipient may impose, the standard of evidence applied by the recipient to all formal complaints of sexual harassment under Title IX (which must be either the preponderance of the evidence standard, or the clear and convincing evidence standard), the recipient’s appeal procedures, and the range of supportive measures available to both parties; and
protects any legally recognized privilege from being pierced during a grievance process.
Requires written notice of the allegations to both parties, including informing the parties of the right to select an advisor of choice.
Require schools to investigate formal complaints, describe when a formal complaint is subject to mandatory or discretionary dismissal, require the recipient to notify the parties of any dismissal, and authorize discretionary consolidation of formal complaints when allegations of sexual harassment arise out of the same facts or circumstances.
Requires schools to investigate formal complaints in a manner that:
keeps the burden of proof and burden of gathering evidence on the recipient while protecting every party’s right to consent to the use of the party’s own medical, psychological, and similar treatment records;
provides the parties equal opportunity to present fact and expert witnesses and other inculpatory and exculpatory evidence;
does not restrict the parties from discussing the allegations or gathering evidence;
gives the parties equal opportunity to select an advisor of the party’s choice (who may be, but does not need to be, an attorney);
requires written notice when a party’s participation is invited or expected for an interview, meeting, or hearing;
provides both parties equal opportunity to review and respond to the evidence gathered during the investigation; and
sends both parties the recipient’s investigative report summarizing the relevant evidence, prior to reaching a determination regarding responsibility.
Requires a live hearing with cross-examination conducted by the parties’ advisors at postsecondary institutions, while making hearings optional for elementary and secondary schools (and other recipients that are not postsecondary institutions) so long as the parties have equal opportunity to submit written questions for the other parties and witnesses to answer before a determination regarding responsibility is reached.
Requires a decision-maker who is not the same person as the Title IX Coordinator or the investigator to reach a determination regarding responsibility by applying the standard of evidence the recipient has designated in the recipient’s grievance process for use in all formal complaints of sexual harassment (which must be either the preponderance of the evidence standard or the clear and convincing evidence standard), and the recipient must simultaneously send the parties a written determination explaining the reasons for the outcome.
Requires schools to offer appeals equally to both parties, on the bases that procedural deficiencies, newly discovered evidence, or bias or conflict of interest affected the outcome.
Allows schools to offer and facilitate informal resolution processes, within certain parameters to ensure such informal resolution only occurs with the voluntary, written consent of both parties; informal resolution is not permitted to resolve allegations that an employee sexually harassed a student.
Requires schools to maintain records and documentation concerning sexual harassment reports, formal complaints, investigations, and adjudications; and to publish materials used for training Title IX Coordinators, investigators, decision-makers, and persons who facilitate informal resolutions on the recipient’s website or make these materials available upon request for inspection by members of the public.

Tamburino Law Grouphas been actively defending students in Title IX cases for years. Our attorneys have the understanding and experience to appropriately advise students during the Title IX process, which is supported by numerous findings of “Not Responsible.” If you need an attorney, call us immediately. We answer our phones 24/7.

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