Title IX of the Education Amendments of 1972 (“Title IX”) prohibits sex discrimination in any education program or activity receiving federal financial assistance. In 1972, Congress delegated to the U.S. Department of Education (“DoE”) the power and responsibility to hold educational institutions receiving federal funds accountable for their responses to sex-based discrimination. Since 1997, DoE has set standards governing the responsibilities of funding recipients to address sexual harassment, including sexual assault, and to take steps to prevent it. See Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed. Reg. 12,034 (Mar. 13, 1997) (“1997 Guidance”).
On November 16, 2018, DoE announced and soon thereafter proposed in draft form new Title IX regulations called Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 83 Fed. Reg. 61,462 (Nov. 29, 2018) (the “Rule”). According to DoE, the “new Title IX regulation holds schools accountable for failure to respond equitably and promptly to sexual misconduct incidents and ensures a more reliable adjudication process that is fair to all students.” Press Release, U.S. Dep’t of Educ., Secretary DeVos Takes Historic Action to Strengthen Title IX Protections for All Students (May 6, 2020), available at https://www.ed.gov/news/press-releases/secretary-devos-takes-historic-action-strengthen-title-ix-protections-all-students. Among other things, the proposed Rule fundamentally altered the ways in which educational institutions would be required to respond to complaints of sexual harassment and assault under Title IX.
In response to the proposed Rule, DoE received over 124,000 public comments, many of which of argued that the proposed regulations actually weakened the existing Title IX protections by, for example, raising certain evidentiary standards and narrowing the definition of “sexual harassment.” Notwithstanding these concerns, however, DoE issued the final Rule on May 6, 2020, which is currently set to go into effect on August 14, 2020. Should the Rule take effect as planned, it will, unlike prior guidance issued by DoE, have the force of law. Given that the new regulations impose a number of requirements for educational institutions, and the short window these institutions have to bring their Title IX programs into compliance, schools and universities that receive federal financial assistance should, if they have not already, promptly evaluate their Title IX programs to ensure compliance with the new Rule and to make any necessary changes. In doing so, these institutions should carefully consider how the Rule comports with each individual school’s own policies and procedures, including their own codes of conduct. Although the Rule makes a number of important changes to the Title IX landscape, we have highlighted a few of the most noteworthy changes below. To the extent you have questions about your institution’s Title IX compliance, please feel free to contact Quinn Emanuel.
Notice to the Institution. The Rule narrows the scope of when an institution is required to respond to allegations of potential sexual misconduct. In particular, Section 106.44(a) provides that “[a] recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States, must respond promptly in a manner that is not deliberately indifferent.” (emphasis added). “Actual knowledge” is defined as:
[N]otice of sexual harassment or allegations of sexual harassment to a recipient’s Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient, or to any employee of an elementary and secondary school. Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge. This standard is not met when the only official of the recipient with actual knowledge is the respondent. The mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual as one who has authority to institute corrective measures on behalf of the recipient. “Notice” as used in this paragraph includes, but is not limited to, a report of sexual harassment to the Title IX Coordinator as described in § 106.8(a).90.
Sections 106.30 and 106.44(a) thus require a recipient to respond to sexual harassment only if it has “actual knowledge” of such harassment. Under these provisions, a college or university would be deemed to have actual knowledge only if notice is provided to its Title IX Coordinator or any official with the authority to institute corrective measures on behalf of the institution. The requirement that students contact specific employees before an institution has any obligation is a notable departure from DoE’s prior guidance. Previously, DoE required a recipient to respond to sexual harassment if “the school knows or should have known of the harassment,” including harassment the school would have found out about through a “reasonably diligent inquiry.” 1997 Guidance, 62 Fed. Reg. at 12,039–12,040, 12,042 (emphasis added). Under the prior standard, institutions could be on notice if students reported the conduct to trusted adults such as a campus security officer, professor, or athletic coach, if staff themselves witnessed the harassment, or if the incident was publicized in the media or flyers about the incident widely posted at the college. Id. That is no longer the case. Critics have argued that the new heightened notice requirement creates a disincentive for higher education institutions to learn about possible harassment on campus because without “actual knowledge,” they can avoid liability for failure to respond.
Heightened Evidentiary Standard. The Rule also allows—although it does not require—institutions to adopt a “clear and convincing evidence” standard of proof, more stringent than typically required when evaluating complaints brought under other civil rights laws, including private damages actions under Title IX. Specifically, Section 106.45(b)(1)(vii) requires institutions to “[s]tate whether the standard of evidence to be used to determine responsibility is the preponderance of the evidence standard or the clear and convincing evidence standard, apply the same standard of evidence for formal complaints against students as for formal complaints against employees, including faculty, and apply the same standard of evidence to all formal complaints of sexual harassment.”
As a result of these changes, institutions are now free to adopt a clear and convincing evidence standard for cases involving sexual harassment and assault even if they employ a preponderance of the evidence standard in all other proceedings. This would place a heavier burden on those alleging sexual harassment than on students who allege other forms of harassment. Moreover, institutions are now required to adopt the higher standard of proof if they use it for sexual harassment complaints against faculty. See Section 106.45(b)(1)(vii). The Rule also now requires uniformity across the employment and student disciplinary contexts for sexual harassment, but not other forms of harassment.
Changes to the Definition of “Sexual Harassment.” Sections 106.30, 106.44, and 106.45 of the Rule change the definition of “sexual harassment” to which institutions must respond in ways that exclude conduct DoE historically recognized as denying equal access to education because of sex. In particular, Section 106.30 of the Rule limits the conduct that gives rise to an institution’s responsibility to act by changing the definition of harassment from a disjunctive list of “severe, pervasive, or objectively offensive”—consistently used by DoE since 1997—to a conjunctive list by replacing “or” with “and,” thus requiring all three conditions to be satisfied as a condition of administrative enforcement for the first time since Title IX’s passage in 1972. By requiring institutions to respond only when conduct is “severe” and “pervasive” and “objectively offensive,” critics have argued that the new Rule allows recipients to ignore a substantial range of conduct that causes a student to be “denied the benefits of” education or “subjected to discrimination” because of sex. 20 U.S.C. § 1681(a).
Off-Campus Conduct and Study Abroad Programs. The Rule further limits the type of sexual harassment to which a school must respond. Superficially, the Rule makes clear that Title IX only covers sexual harassment occurring in the United States. See Section 106.44(a). As a result, Title IX complaints alleging conduct that occurred outside of the United States, including conduct that occurred during a study abroad program, must be dismissed. See Section 106.45(b)(3).
The Rule also limits Title IX sexual harassment cases to “education programs or activities” over which the institution exercises substantial control or those occurring in any building owned or controlled by a student organization that is officially recognized by a postsecondary institution. As a result, misconduct that occurs, for example, in private off-campus housing, at a third-party research conference, or at a fraternity house that is not officially recognized is beyond Title IX’s reach, although it may violate other institutional policies. Previous guidance made clear that institutions had the obligation to respond to a hostile environment that exists at school or on campus even where some of the conduct that culminated in that environment occurred off campus. See U.S. Dep’t of Educ., Q&A on Campus Sexual Misconduct (Sept. 2017), available at https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf. Interestingly, DoE made these changes despite recognizing that approximately 41% of college sexual assaults occur off campus. See 83 Fed. Reg. at 61,487 n.27.
Heightened Level of Indifference. Section 106.44 of the Rule changes an institution’s obligation to respond to conduct that constitutes sexual harassment as long as it does not act “deliberately indifferent.” Specifically, under Section 106.44(a), “[a] recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States, must respond in a manner that is not deliberately indifferent.” A recipient is “deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light of the known circumstances.” Id. This change, again, departs from prior guidance, which required recipients to affirmatively “take immediate and appropriate steps to investigate or otherwise determine what occurred and take steps reasonably calculated to end any harassment, eliminate a hostile environment if one has been created, and prevent harassment from occurring again . . . [I]n appropriate circumstances, the school [was] also . . . responsible for taking steps to remedy the effects of the harassment on the individual student or students who were harassed.” 1997 Guidance, 62 Fed. Reg. at 12,042.
Live Hearing Requirement and Cross-Examination. The Rule requires all post-secondary institutions to conduct a live Title IX hearing that allows for cross-examination of all witnesses by each party’s advisor. The Rule also requires institutions to separate investigative functions from decision-making functions, effectively disallowing the “single-investigator” model that had become increasingly common at universities. And for those tasked with Title IX adjudicatory authority, the Rule requires appropriate evidentiary training for these individuals. In terms of cross-examination, the Rule forbids the presiding decision-makers from relying on any statement of any party or witness who refuses to submit to live cross-examination in reaching a determination regarding responsibility. The Rule does, however, limit the scope of cross-examination and questioning by requiring decision-makers to determine whether a question is relevant before the party or witness is required to answer. If the decision-maker(s) excludes a question as irrelevant, the decision-maker(s) must explain on the record the basis for that decision. Notably, the Rule provides rape shield-type protections for complainants that disallow questions or evidence about a complainant’s sexual disposition or prior sexual history. There are, however, two exceptions to this rule. First, such evidence can be used in proving someone other than the respondent committed the conduct in question, and second, to prove consent by showing complainant’s prior history with respondent.
Mandatory Appeals Process. The Rule also mandates that institutions provide an appeals process for all parties in connection with a determination regarding responsibility, and from an institution’s dismissal of a formal complaint or any specific allegations in the formal complaint. The appeal process must offer an appeal based on the following grounds: (i) procedural irregularity that affected the outcome of the matter; (ii) new evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made that could affect the outcome of the matter; or (iii) the Title IX Coordinator, investigator, or decision-maker had a conflict of interest or bias that affected the outcome of the matter. Other bases for appeal may be made available if offered to both parties. The appeal process must be equitable to both parties, including by providing notice to both parties when the appeal is filed; ensuring that the decision-maker for the appeal is not the same person as the initial decision-maker on the formal complaint, the investigator, or the Title IX Coordinator; providing both parties a chance to submit a written statement; and issuing a written decision that is provided to both parties.
The new Rule has garnered substantial controversy. Indeed, the regulations have been widely condemned by a number of advocacy groups and by leading Democrats, including House Speaker Nancy Pelosi and former Vice President Joe Biden. These critics have taken aim at several of the notable changes to Title IX, including the new cross-examination requirement, which, they argue, threatens to “re-traumatize” complainants, discourage the reporting of misconduct, make the process unnecessarily adversarial, and give an unfair advantage to those who can hire lawyers. Detractors also note that the Rule’s geographic limitation of Title IX’s reach to institution-controlled or -affiliated properties will allow otherwise actionable harassment to go unpunished. And educational administrators, industry groups, and politicians alike have blasted DoE for demanding compliance with the Rule by the start of the next academic year as colleges and universities grapple with the ongoing financial, health, and logistical complications of COVID-19.
The Rule has already been challenged in court by seventeen Democratic State Attorneys’ General, as well as various civil rights groups. As those cases progress through the courts, Congressional Democrats are also considering legislative repeal or appropriations riders to prevent enforcement of the Rule. Such legislative measures, however, are unlikely to occur before the August 14, 2020 effective date. And absent a court order, DoE plans to move forward as scheduled with the implementation of the Rule. Nor does it seem likely that the COVID-19 pandemic will disrupt DoE’s implementation plans. In fact, DoE recently acknowledged its consideration of the COVID-19 national emergency in adopting the effective date of August 14, 2020: “The Department notes that recipients have been on notice for more than two years that a regulation of this nature has been forthcoming from the Department, and recipients will have substantially more than the minimal 30 days to come into compliance with these final regulations, which become effective on August 14, 2020.” Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30,026, 30,534 (May 19, 2020) (to be codified at 34 C.F.R. pt. 106). Accordingly, educational institutions should proceed with the understanding that the new Rule will go into effect as planned on August 14, 2020. To the extent you have questions about your institution’s Title IX compliance, please feel free to contact Quinn Emanuel.