Last month, the U.S. Department of Education published its long-awaited final regulations under Title IX of the Education Amendments Act of 1972, the federal law that protects individuals from discrimination based on sex in education programs and activities.  The regulations, which go into effect August 14, 2020, significantly change how covered educational institutions must respond to allegations of sexual harassment.

Title IX covers recipients of federal financial assistance, including elementary and secondary schools, as well as postsecondary institutions and institutions of higher education. Affected schools, colleges and universities must act quickly in updating their procedures and processes in order to comply with the August 14, 2020, effective date.

Notable changes to Title IX

Although the federal regulations to Title IX have not been updated since 1975, the Department of Education has issued a variety of “guidance documents” over the years expressing the Department’s interpretation of covered institutions’ obligations under Title IX.  Although these  “guidance documents” are not legally binding, the Department’s recently published regulations carry the full force of law.

Some of the more recent guidance to Title IX came about during a time of peaked awareness and controversy about sexual misconduct and harassment in the entertainment industry—perhaps due in large part to the #MeToo movement. Guidance issued during the Obama administration was criticized for swinging the pendulum too far in the direction of individuals identifying as victims. Now the Department under the Trump administration is being criticized for a pendulum shift that overly favors the accused, rather than the victims.

The final regulations are “premised on setting forth clear legal obligations that require recipients to: Promptly respond to individuals who are alleged to be victims of sexual harassment by offering supportive measures; follow a fair grievance process to resolve sexual harassment allegations when a complainant requests an investigation or a Title IX Coordinator decides on the recipient’s behalf that an investigation is necessary; and provide remedies to victims of sexual harassment.”

Some of the most notable changes in the final regulations include:

• “Sexual harassment” has been more specifically defined to include three types of discrimination on the basis of sex: (1) quid pro quo harassment; (2) any unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it effectively denies a person equal educational access; and (3) any instance of sexual assault, dating violence, domestic violence, or stalking;
• Institutions must offer “supportive measures” to every alleged victim of sexual harassment;
• Institutions must initiate the grievance process for every ”formal complaint,” which can be filed by a complainant or signed by the school or institution’s Title IX Coordinator;
• When no formal complaint is filed, the educational institution’s decision not to investigate will be evaluated under the deliberate indifference standard;
• Reaffirmation of due process requirements in the grievance process for both complainants and respondents, including the following requirements:
  • Written notice of the allegations to both parties, affording both parties the right to select an advisor of choice, and allowing both parties to provide evidence.
  • For post-secondary institutions, a live hearing with cross-examination conducted by the parties’ advisors (who may be attorneys);   
  • Appointment of a decision-maker who is not the Title IX Coordinator or the investigator to reach a determination regarding responsibility;
• Institutions must train all Title IX personnel about the new rule’s definition of sexual harassment, how to conduct informal resolutions and formal grievance processes, and how to “serve impartially,” including avoidance of “prejudgment of the facts at issue, conflicts of interest, and bias.”
• Institutions must publicly post all training materials on the school’s website or make these materials available on request.

The final regulations call for significant updates to institutions’ Title IX grievance processes. Attorneys General from several states have filed lawsuits challenging the final regulations, attempting to enjoin them from taking effect in August, and challenging the new procedural requirements as arbitrary, unlawful, and having a chilling effect on the reporting of sexual harassment. The lawsuits allege that students will be less protected from sexual harassment, that the final regulations reverse decades of efforts to end the negative effects of sexual harassment, and the requirements of the final regulations are impracticable and will require schools across the country to overhaul their grievance policies and procedures in a short amount of time amidst a global pandemic.

Compliance with these new regulations will likely be more difficult due to the effects of the COVID-19 pandemic, which is having a significant impact upon whether educational institution programs and activities will take place in person, remotely, or at all.

Urgent next steps for covered institutions

While we plan to track the progress of litigation challenging the Title IX final regulations, August 14, 2020, is rapidly approaching. Covered institutions must update their Title IX grievance procedures and consider how to staff various roles in the grievance process in order to comply with the expansive final regulations and additional due process requirements. Failure to comply with Title IX and its regulations could result in a loss of federal funding and litigation. Lawsuits implicating Title IX guarantees are noteworthy and often receive prominent attention.