School administrators may want to find time over the upcoming holiday season to review the proposed regulations issued by the U.S. Department of Education governing sexual misconduct. While the proposed regulations are open to public comment for at least 60 days, schools should begin their preparations to manage the proposed regulations, or similar regulations, to become effective in the near future.

As we noted in a previous alert, the proposed regulations should not be a surprise, given that a draft of the proposed regulations was leaked to the media in the late summer of 2018 and the Department had previously rescinded Obama-era guidelines for sexual misconduct investigations.

As expected from the leaked draft of the regulations, the Department has moved to narrow the definition of sexual harassment and generally limit the legal exposure of schools when handling sexual misconduct issues. The proposed regulations describe the following:

What constitutes sexual harassment?

The proposed regulations define sexual harassment to encompass three discrete actions: (1) quid pro quo harassment, where an employee conditions educational benefits on a person’s participation in unwelcome sexual conduct; (2) unwelcome conduct that is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to” education; or (3) sexual assault. This narrow standard differs greatly from the broad definition used in the guidelines issued by the prior administration, which had defined sexual harassment as any “unwelcome conduct of a sexual nature.”

Under what circumstances must the school respond to alleged sexual misconduct?

First, the alleged conduct must involve “sexual harassment” as that term is defined above.

Second, the sexual harassment must arise within school-owned premises or at sponsored events. Under certain circumstances, this requirement may seem to exclude off-campus parties that are not sponsored by schools.

Third, the sexual harassment must be directed to a person within the United States, which may exclude students studying abroad.

Fourth, the school must have “actual knowledge” of the sexual harassment allegation. Actual knowledge will be found if the matter is reported to the school’s Title IX Coordinator (a position mandated by law for every school) or “an official with authority to take corrective action.” The latter will vary from case-to-case.

If all four requirements are not met, then the school is under no legal obligation to respond to a complaint of sexual misconduct.

What response is required?

If a school has actual knowledge of an allegation meeting all of the necessary requirements outlined above, the proposed regulations require it to respond in a manner that is “not deliberately indifferent.” In other words, the school cannot “do nothing.” As long as it is not deliberately indifferent to the allegation of sexual harassment, the school may fall within a safe harbor provision of the propose regulation, sheltering it from potential liability.

Where there is no formal complaint, a school must provide “supportive measures” to attempt to mitigate the effects of any alleged sexual harassment, which could include informal adjustments to class schedules or dorm room assignments.

Where a formal complaint is filed, a school must conduct an investigation and follow an established grievance procedure that provides due process to accused students or employees. Essentially, the procedure must generally treat both sides equally and provide a presumption of innocence to the accused. Among the requirements of due process, all parties must have equal opportunity to present witnesses and evidence and have the right to cross-examine each other. Cross-examination of complaining parties cannot be conducted by the accused, and can only be performed by an “advisor” of the accused’s choosing or one appointed by the school for that purpose. These procedural requirements stand in contrast to the prior guidelines, which had allowed for limited access to evidence and discouraged cross-examination during hearings.

Following the formal grievance procedure, the school must issue a written determination as to guilt or innocence. When weighing the evidence, schools are allowed to set the standard of proof as either the “preponderance of the evidence” standard or the higher “clear and convincing” standard, but the standard must be consistent with the standard used by the school in similar types of proceedings, including proceedings involving faculty. By contrast, schools were encouraged to use the lower “preponderance of the evidence” standard for determining liability under the prior standards

What to do next?

While the proposed changes seem to reduce the chances of legal liability for schools, the regulations will, like any change in the law, trigger new regulatory burdens and could possibly require wholesale amendments to existing policies applicable to both employees and students. In addition, schools must be attuned to new potential claims from the accused for failing to provide due process that has now been enshrined in the regulations.

Moreover, in the current political and social climate, schools will have to take account of the reactions of students, faculty, alumni, and the public when altering their current framework for handling sexual misconduct investigations. There will certainly be great public debate over the merits of the proposed regulations, but schools must ensure that they are ready to comply with the regulations in their final form when they becomes effective. Fox will continue to monitor these developments for its higher education clients.