On May 6, 2020, the United States Department of Education issued long-awaited Final Regulations (the “Regulations”) amending Title IX regulations. The Regulations focus on Title IX protections for victims of sexual misconduct and specify how recipients of Federal financial assistance covered by Title IX, including elementary and postsecondary institutions (collectively referred to as “institutions”), must respond to allegations of sexual harassment. Notably, the Regulations also define sexual harassment, including sexual assault, as unlawful sex discrimination.

The extensive Regulations, which exceed 2,000 pages and impose some entirely new requirements on institutions, become effective on August 14, 2020. Therefore, institutions must begin taking steps now to amend their Title IX policies and procedures for purposes of compliance.

This Legal Alert highlights some of the key provisions in the Regulations that institutions must be aware of when reviewing and revising their Title IX policies and procedures:

Definition of Sexual Harassment

For the first time, the Regulations provide a definition of “sexual harassment.” Instead of relying solely on the established standards set forth in a long line of federal cases, the definition is now clear. Sexual harassment is defined as conduct on the basis of sex that satisfies one or more of the following: (1) an employee of the institution conditioning an aid, benefit or service of the institution on an individual’s participation in unwelcome sexual conduct (i.e. quid pro quo); (2) any unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person access to the institution’s education program or activity; or (3) sexual assault (as defined in the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act), dating violence, domestic violence, or stalking as defined in the Violence Against Women Act (“VAWA”).

Concerning the second category of sexual harassment, which is derived from the Supreme Court’s holding in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), it is important to note that this standard is a change as OCR Guidance previously indicated that sexual harassment was to include unwelcome conduct that a reasonable person would determine is severe, pervasive or persistent and interferes with or limits a student’s participation in or benefit from school services, activities or opportunities. Further, this definition is Title IX specific. In other words, institutions must understand that the Davis standard differs from the Supreme Court’s Title VII workplace standard (i.e. severe or pervasive conduct creating a hostile work environment).

Sexual Harassment Occurring in a School’s “Education Program or Activity” and “in the United States”

Under the Regulations, institutions must respond when sexual harassment occurs in the institution’s “education program or activity,” against a person “in the United States.” This includes locations, events, or circumstances over which the institution exercised substantial control over the alleged perpetrator (the “respondent”) and the context in which the sexual harassment occurred. Importantly, this also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution (such as a fraternity or sorority house). As mentioned, the Regulations only apply to sexual harassment occurring to persons “in the United States”—therefore, institutions will need to determine how they will address sexual harassment when, for example, students are engaged in study-abroad programs or out-of-country on spring break trips.

Title IX Coordinator

Under previous Title IX regulations, institutions were required to designate an employee to coordinate the institution’s compliance efforts with Title IX. Now, institutions must also “authorize” an employee to do so, and said employee must be referred to as the “Title IX Coordinator.” Notice of the Title IX coordinator’s name or title, email address, office address, and telephone number must be provided to applicants for admission and employment, students, parents or legal guardians, and unions or professional organizations holding agreements with the institution.

Training of Title IX Personnel

The Regulations highlight the importance of properly training the necessary Title IX personnel, such as Title IX coordinators, investigators, and decision-makers, with respect to Title IX response and grievance processes. Such personnel must be trained on, among other things, the definition of sexual harassment under the Regulations, the scope of an institution’s “education program or activity” and the proper process of conducting investigations. Where applicable, training must also include information on serving impartially (i.e. avoiding prejudgment of the facts at issue, conflicts of interest, and bias.) Importantly, decision-makers and investigators must be trained on the issues of relevance and evidence throughout the investigation and hearing processes.

Reporting Allegations of Sexual Harassment

The Regulations provide that any person may report sex discrimination, including sexual harassment, whether or not the person is the alleged victim of the reported conduct. Such a report may be made in person, by mail, telephone, email, or using the Title IX Coordinator’s contact information, and may be made at any time, including during non-business hours.

Response to Sexual Harassment

The Regulations set forth a number of requirements for institutions to follow when responding to notice of sexual harassment, as well as to formal complaints of sexual harassment. A formal complaint of sexual harassment is a document that can only be filed by the alleged victim (the “complainant”) or signed by the Title IX Coordinator, alleging sexual harassment against the respondent and requesting that the institution investigate an allegation of sexual harassment. With respect to formal complaints of sexual harassment, the Regulations prescribe a consistent and transparent grievance process for resolving such complaints to ensure, among other things, that complainants and respondents are treated equitably before any disciplinary consequences or sanctions are imposed.

Under the Regulations, an institution with actual knowledge of sexual harassment must respond promptly in a manner that is not deliberately indifferent. (An institution is deliberately indifferent to these purposes if its response is clearly unreasonable in light of known circumstances.) Actual knowledge is notice of sexual harassment or allegations of sexual harassment provided to: an official of a college who has authority to institute corrective measures on behalf of the college; or any employee of an elementary and secondary school. Insufficient knowledge for response purposes includes constructive knowledge, imputation of knowledge, knowledge only by the respondent, and knowledge by any official (other than those mentioned).

Supportive Measures Requirement

Notably, the Regulations provide that in response to sexual harassment, Title IX Coordinators must promptly contact the complainant in a confidential manner to discuss the availability of supportive measures, such as counseling, extensions of deadlines or other course-related adjustments, leaves of absence, etc. The Title IX Coordinator is required to consider the complainant’s wishes with respect to supportive measures, inform him/her of the availability of supportive measures (whether or not a formal complaint was filed), and explain the process for filing a formal complaint where applicable.

Supportive measures must also be made available to the individual accused of sexual harassment, referred to in the regulations as “respondent”. Such measures must be non-punitive, non-disciplinary and ensure equal educational access, protect safety or deter sexual harassment. The institution must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the institution to provide supportive measures.

Emergency Removals

The Regulations limit the circumstances under which a respondent can be removed from an education program or activity on an immediate, referred to as “emergency”, basis. The emergency removal is permitted so long as (1) the institution undertakes an individualized safety and risk analysis; (2) determines that an immediate physical threat to the health or safety of students or others arising from the alleged sexual harassment justifies removal; and (3) provides the respondent with notice and an opportunity to challenge the decision immediately following the removal. In addition, it is crucial that any emergency removal of a student with a disability conform with the requirements of the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973 (Section 504), and the Americans with Disabilities Act (ADA). Institutions should clearly and thoroughly document the basis for all emergency removal determinations.

Investigation

Institutions are required to investigate the allegations set forth in any formal complaint and, upon receipt of a formal complaint, must send written notice of the allegations to both the complainant and respondent. The Regulations provide that an institution may consolidate formal complaints where the allegations of sexual harassment arising out of the same facts or circumstances. If the alleged conduct would not meet the definition of sexual harassment, even if proved, or did not occur against a person “in the United States,” the Regulations require the institution to terminate the grievance process with respect to that conduct.

Additionally, an institution may dismiss a formal complaint for the following reasons: a complainant notifies a Title IX Coordinator in writing that he/she would like to withdraw the formal complaint; the respondent is no longer enrolled or employed; or circumstances prevent the institution from gathering evidence sufficient to reach a determination. Institutions must give the parties written notice of a dismissal (mandatory or discretionary) and the reasons for the dismissal.

The Regulations require institutions to comply with the following rules throughout the investigation process:

• The burden of gathering evidence and burden of proof must remain on institutions—not on the parties.
• Institutions must provide equal opportunity for the parties to present fact and expert witnesses and other inculpatory and exculpatory evidence, as well as pose all relevant questions to the other party and witnesses.
• Institutions must not restrict the ability of the parties to discuss the allegations or gather evidence.
• Parties must have the same opportunity to select an advisor of the party’s choice who may be, but need not be, an attorney.
• Parties must send written notice of the date, time, location, participants and purpose of any investigative interviews, meetings, or hearings, with sufficient time for parties to prepare.
• Institutions must create an investigative report that fairly summarizes relevant evidence at least 10 days prior to a hearing or other time of determination regarding responsibility. They must also provide a copy of the report to the parties for their review and written response.
• Prior to completion of the investigative report, the institution must send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or hard copy, and the parties shall have at least 10 days to submit a written response, which the investigator must consider prior to completion of the investigative report.
• Institutions must protect the privacy of a party’s medical, psychological, and similar treatment records by stating that institutions cannot access or use such records unless obtaining the party’s voluntary, written consent to do so.

Hearings and Cross-Examination

While postsecondary institutions must provide for live hearings, doing so is optional for K-12 institutions (and any other recipient that is not a post-secondary institution). A Title IX coordinator may determine whether a live hearing is necessary on a case-by-case basis, so long as the K-12 institution’s (and other recipients that are not postsecondary institution’s) grievance process clearly indicates the equitable circumstances under which a hearing will or will not be held.

With respect to live hearings for post-secondary institutions, the decision-maker(s) must permit each party’s advisor to ask the other party and any witnesses all relevant questions, including those challenging credibility. Live hearings may be conducted with all parties physically present in the same geographic location or, at the institution’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually. Additionally, if either party requests, the institution must provide for the entire live hearing to occur with the parties located in separate rooms with technology enabling the parties to see and hear each other.

During the live hearing, relevant cross-examination may be conducted directly and in real-time by the party’s advisor of choice, but never by a party personally. If a party does not have an advisor present at the live hearing, the institution must provide, without fee or charge, an advisor of the institution’s choice (who may be an attorney) to conduct cross-examination on behalf of that party.

Standard of Evidence

The Regulations require the institution’s grievance process to state whether the standard of evidence to determine responsibility is the preponderance of the evidence standard or the clear and convincing evidence standard. Whichever standard the institution uses, it must be applied during all formal complaints of sexual harassment, whether involving a student or an employee.

Determination of Responsibility

The Regulations require that decision-makers, who, importantly, cannot be the Title IX Coordinator or the investigator(s), must issue a written determination regarding responsibility. Institutions must send the written determination simultaneously to the parties, as well as provide them information on filing an appeal.

The written determination must include the following information: identification of the sexual harassment allegations; a description of all procedural steps taken by the institution (notifications to the parties, any interviews conducted, etc.); findings of fact supporting the determination; conclusions regarding the application of the institution’s code of conduct to the facts; a statement of and rationale for each allegation (including the determination of responsibility, any sanctions imposed on the respondent, and whether remedies will be provided to the complainant); and information relating to the appeals process.

Recordkeeping Procedures

Institutions are now required to maintain for seven years records relating to reports of alleged sexual harassment, including investigation records and responsibility determinations, appeals, informal resolution, and materials used to train Title IX Coordinators and other Title IX personnel. Institutions must also create and maintain for seven years any actions (including supportive measures) that it took in response to a report or formal complaint of sexual harassment, in addition to the reasoning for its decisions.

Appeals

Pursuant to the Regulations, institutions must offer both the complainant and respondent an appeal from a determination regarding responsibility for the following reasons: there was a procedural irregularity that affected the outcome of the matter; there is newly discovered evidence (that was not reasonably available at the time of the determination) that could affect the determination; and/or the Title IX Coordinator and other related personnel had a conflict of interest or bias that affected the determination.

Next Steps for Institutions

Institutions should immediately begin reviewing the Regulations to become familiar with the new requirements and take the necessary steps to amend and update existing Title IX policies and procedures. In light of the global pandemic and the extensiveness of the Regulations, this will be no easy task for institutions. Therefore, by proactively taking steps now, institutions can ensure they are in compliance with the Regulations before the effective date of Aug. 14.