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Colleges and universities are facing the need to prepare for the new Title IX Regulation, outlined in a 2,033-page document, which will go into effect on August 14, 2020.  

The new Title IX will include a broader definition of sexual harassment, a change in mandatory reporters, added protections for both the victim and the accused, an additional burden of proof option and the manner in which the hearing process is conducted, to name a few.

Despite the challenges institutions across the United States face with COVID-19, compliance with this regulation is mandatory.

It is critical that colleges and universities are prepared, as the new regulation will necessitate some modifications to policies and practices relating to sexual harassment – not other forms of protected-status harassment.

Definition of Sexual Harassment

Sexual harassment now includes the following three types of conduct:

  1. Quid pro quo sexual harassment by employees
  2. Sexual assault, dating violence, domestic violence, and stalking, as defined by the Clery Act
  3. Any “unwelcomed conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it denies a person access to the recipient’s education program or activity”

Key Requirements

“Actual Knowledge” is Key

Before being obligated to respond, a college or university must have “actual knowledge” of the Title IX allegation. Actual knowledge is defined as notice to an official that has authority to take corrective action. It is imperative that colleges and universities understand that a response is distinct from an investigation.

Colleges and universities are required to respond to reports of sexual harassment by providing supportive services to victims. These services are required even if there is a formal complaint has not been filed. If a formal complaint is filed, the same support services must be extended to the respondent.

Having actual knowledge does not trigger the need to conduct a formal investigation. Rather, it is the filing of a “formal complaint” that triggers the need for a formal investigation.

A formal complaint may be filed by either the Title IX Coordinator of the alleged victim. An alleged victim may file a formal complaint if he/she is participating in an educational program or activity or is attempting to participate in such. Colleges and universities must familiarize themselves with the detailed requirements for formal complaints regarding the grievance procedures, notice, investigations and hearings. Colleges and universities are still permitted to use their own employees to adjudicate complaints or hire independent investigators or attorneys to do so.

Colleges and universities are allowed to offer an informal resolution in lieu of an investigation and adjudication. However, the students involved must consent in writing to an informal resolution only after receiving detailed notice of the allegations as well an explanation of the informal resolution process. A college or university cannot compel students to agree to an informal resolution as a condition of enrollment. It is critical for colleges and universities to understand that this option is not permitted if the accusation is against an employee.

Two Standards of Proof

The new regulation also gives colleges and universities discretion in choosing between two standards of proof in finding whether a student is liable for a violation – preponderance or clear and convincing. Preponderance, defined as 51% of the evidence favoring a finding of fault, was the only standard permitted under the previous regulations.

Now, colleges and universities can decide how they want to proceed. However, once the college or university makes its selection, the standard must be used uniformly for all cases, including those against staff and faculty.

Another key difference with this regulation is that there is a presumption that the respondent did not violate Title IX. Furthermore, colleges and universities bear the burden of proof and has the obligation to collect all relevant information.

“Live” Disciplinary Hearing

Title IX also requires “live” disciplinary hearings that some may say mirror legal proceedings in criminal cases. Particularly, the college or university must provide a student with an advisor, if he or she does not have one. It is not necessary for the advisor to be an attorney.

Each student’s advisor will have an opportunity to ask relevant questions and cross-examine any witness, including the alleged victim and the accused. If a witness refuses to be cross-examined, a college or university should not rely on that witness’s testimony. Similar to criminal cases, cross-examination regarding the complainant’s sexual behavior or disposition are not permitted unless offered to establish consent or another party’s responsibility for violation.

The hearing process is conducted by decision-makers, who must make contemporaneous rulings on both relevancy and objections. The decision-makers must also issue a written decision explaining their rationale for their decision. The college or university must offer an opportunity to appeal in the event of new evidence, a procedural irregularity or a conflict of interest by institutional participants.

If colleges and universities have not used live hearings beforehand, this may take some adjustment. As such, it is imperative that they properly train their staff to ensure adequate preparedness to implement the new investigation and hearing requirements. Not only is it necessary to provide training, but colleges and universities must ensure that training information is retained for seven years.

Additionally, the training documents must be readily available on the institution’s website. Similar to the need to preserve training records, colleges and universities must preserve the complete records of every case for seven years. This includes records where only supportive measures are provided, informal resolutions and formal cases. It is also important for colleges and universities to be aware that parties involved have a right to access these records.

Be Aware of Preemptions

Colleges and universities should also be aware of the preemptions as they relate to Title IX. Particularly, the regulation indicates that Title IX explicitly preempts the Family Educational Rights and Privacy Act to the extent that there is a conflict between the two. Title IX also eliminates the need to seek a FERPA waiver in the event information is being shared for a reason mandated by the regulation. In addition, Title IX preempts state and local laws to the extent those laws are inconsistent with the regulation’s definition of sexual harassment and its mandates for the investigation and grievance process.

Areas of Concern

There have been several concerns expressed over the new regulation, which will take effect in less than a month. Critics have indicated that the new procedural protections for the accused may increase liability, have chilling effect on victims, turn schools into courts or become too costly or difficult to implement.

Community colleges may have even more difficulty given their budget constraints. David Baime, senior vice president of government relations and policy analysis for the American Association of Community Colleges, AACC, said, “community colleges tend to be overlooked when Title IX is thought of. The compliance burdens can even be more acute for our colleges because of their resource situations.”

Of course these concerns are complicated with COVID-19. In March, the American Council on Education (ACE) asked U.S. Education Secretary Betsy DeVos to delay the regulations until we are passed the pandemic, stating, “At a time when institutional resources are already stretched thin, colleges and universities should not be asked to divert precious resources away from more critical efforts in order to implement regulations unrelated to this extraordinary crisis.”

Secretary DeVos made it clear in her response that she did not want to delay the release of the rules as Title IX cases are being decided during the pandemic, advising that “Civil rights really can’t wait. It’s not a surprise to institutions that it was coming.”

Despite these concerns, there are some benefits such as the flexibility on the timing of investigations, adoption of actual knowledge standard and ability to offer informal resolutions. Either way, time is of the essence for all two-year and four- year institutions to get prepared.

Our Education team will continue to monitor Title IX developments and other issues impacting the education sector.