As expected, the U.S. Department of Education (DOE) recently released proposed Title IX regulations, specifically concerning sexual harassment, including sexual assault. This is significant because the DOE has never addressed these issues through regulation. In the past, guidance has only been available through informal resources, such as the 2011 Dear Colleague Letter and the 2014 Guidance/Q&A. As discussed in previous blog posts, these new regulations, if adopted, would constitute a substantial departure from prior guidance.

For example, the regulations, for the first time, provide a regulatory definition of sexual harassment under Title IX. If the regulations pass as currently proposed, three types of behavior will be considered sexual harassment.

• Quid pro quo harassment, whereby a school employee conditions educational benefits or services upon a person’s engagement in unwelcome sexual conduct.
• Unwelcome conduct on the basis of sex that is so “severe, pervasive, and objectionably offensive” that it effectively denies a person equal access to education.
• Sexual assault, including rape, fondling, incest, or statutory rape, as defined in the Clery Act Regulations.

The proposed regulations also significantly change how schools (K-12 and colleges and universities receiving federal funding) must respond to, investigate, and decide reports of sexual harassment, including sexual assault.

A school is obligated to respond to complaints of sexual harassment once it has “actual knowledge” of the sexual harassment that occurred within the school’s education programs or activities. The proposed regulations do away with the concept of a “responsible employee,” and only require reporting by a school’s Title IX coordinator or “an official with authority to take corrective action”. Once the coordinator or official receives a report, a college or university’s obligation to respond is triggered.

A school is required to investigate when a formal complaint is filed. Previously undefined, a “formal complaint” is a document alleging sexual harassment and requesting initiation of an investigation that is signed by a complainant or the Title IX coordinator.

The regulations propose that schools respond meaningfully to a complaint and act reasonably in light of the known circumstances. This is consistent with the “deliberate indifference” standard often applied by courts when reviewing Title IX investigations. Other noteworthy changes in how a school must investigate and resolve a complaint are:

• Schools can now choose between the clear-and-convincing standard of evidence or the previous preponderance of the evidence standard; however, if the latter is used, the same standard must be applied within the school’s code of conduct.
• Final responsibility determinations must be made at a live in-person hearing.
• Cross-examination of both parties may now occur by their respective advisors.
• The decision-maker must now be separate from the Title IX coordinator or investigator.
• The parties may elect informal resolution procedures, such as mediation, at any time before a responsibility determination
• The regulation provides a “safe harbor” provision to protect schools against a finding of deliberate indifference in certain cases.

We will explore these and other proposed changes in upcoming posts. For now, the public comment period is ongoing. The DOE has the discretion to modify the regulations or disregard submitted comments. Once finalized, the regulations will be binding on educational institutions. Given the potential for substantial change in Title IX response and investigation requirements, schools should review the proposed regulations carefully with an eye toward adapting their own policies and processes to remain in compliance.