The Sophisticated Employer Blog

On Friday, Nov. 16, the U.S. Secretary of Education, Betsy DeVos announced the U.S. Department of Education’s (Department) long-awaited “Notice of Proposed Rulemaking on Title IX of the Education Amendments of 1972” (Proposal).

Although many of the changes were expected based on recent case law developments and comments from Secretary DeVos, the Department’s proposals will mean significant changes to the way educational institutions, at every level, will be required to handle sexual misconduct reporting, investigating, and adjudication. 

Background and Revisions of Title IX Rules

Title IX prohibits discrimination on the basis of sex in education programs and activities that receive federal financial assistance. (See 20 U.S.C. § 1681(a)). Although the application of Title IX to athletics gained the greatest visibility in the early years following its passage, the requirements apply to every single aspect of education. Title IX applies to all educational institutions at the elementary, secondary, and postsecondary levels.

The law applies to both public and private educational institutions that receive federal funds. Almost all private colleges and universities must abide by Title IX regulations because they receive federal funding through federal financial aid programs used by their students.

The first rules under Title IX of the Education Amendments of 1972 (Title IX), were implemented by the Department of Health, Education and Welfare (HEW) in 1975. In recent years, Title IX has been used most often to hold schools accountable for how they handle alleged sexual misconduct impacting students.

Secretary DeVos’ revamp of Title IX rules formally began in September 2017, when she announced the rescission of 2011 and 2014 guidance issued by the Department of Education under the Obama administration. Since then, institutions and advocates on all sides have anxiously awaited these revisions.

On Nov. 16, the long awaited proposal was released. In its press release, the Department emphasizes its intent to provide clarity for schools and support for survivors, and notes: “to the extent that guidance was viewed as mandatory, the obligations set forth in previous guidance were issued without the benefit of notice and comment that would have permitted the public and all stakeholders to comment on the feasibility and effectiveness of the guidance.” Additionally, the Department asserts that the prior guidance did not afford enough attention to due process protection for all parties involved in a sexual misconduct investigation on campus.

The Department’s position is that the proposal will accomplish several important goals that previous rules did not, in particular:

• Define the conduct constituting sexual harassment for Title IX purposes;
• Specify the conditions that activate a recipient’s (school’s) obligation to respond to allegations of sexual harassment and impose a general standard for the sufficiency of a recipient’s response;
• Specify situations that require a recipient to initiate its grievance procedures; and
• Establish procedural safeguards that must be incorporated into a recipient’s grievance procedures to ensure a fair and reliable factual determination when a recipient investigates and adjudicates a sexual harassment complaint.

The following are some of the most notable (and different) aspects of the proposal:

• A promise that the Office of Civil Rights (OCR) will not question a school process or determination unless their action constitutes “deliberate indifference.”
• Colleges and universities will be required to hold a live hearing where cross-examination would be conducted through the parties' advisors. (Put simply: an attorney can cross-examine accusers).
• A new, narrower, definition of sexual-harassment that will trigger the grievance process.
• Schools will no longer be allowed to use a "single investigator" or "investigator-only" model.
• Formal complaints are defined as only those filed by “an official who has the ability to remedy the situation.”
• Institutions will be allowed to use either the “preponderance of the evidence” standard, or the “clear and convincing evidence” standard. (However, there is a clear preference for “clear and convincing” in the rationale proposed by the Department).
• Schools will be permitted to use mediation and other informal resolution methods in a wider range of circumstances.
• A “good faith” approach will be applied to determine whether school administrators are following their policies and procedures.
• Religious institutions will no longer be required to seek prior written approval for an exemption under the law.

Notable Aspects of the Proposal

Deliberate Indifference Standard

As noted above, the proposal raises the burden on the OCR to prove a school’s violation, requiring a demonstration of “deliberate indifference.” “Deliberate indifference” is a standard formulated in the landmark U.S. Supreme Court ruling in Davis v. Monroe City Board of Education, 526 U.S. 629 (1999). 

In Davis, the Supreme Court held that a school acts with deliberate indifference only when it responds to sexual harassment in a manner that is “clearly unreasonable in light of the known circumstances.” Previously, the OCR found that the deliberate indifference standard only applied to private civil actions for monetary damages under Title IX and focused its inquiry on whether schools responded “promptly and effectively” to sexual harassment in educational programs and activities.

The proposal also provides additional relief to educational institutions. Under the proposal, schools are required to activate their grievance process only when a formal complaint is filed (see below for Formal Complaint). If the school follows a grievance procedure that is complaint with the Title IX regulations, then the school will have a “safe harbor” against a finding of deliberate indifference with respect to the school’s response to the formal complaint. 

As it relates to the “actual knowledge” component, the proposal borrows the definition from the Jeanne Clery Disclosures of Campus Security Policy and Campus Crime Statistics Act (Clery Act). The Clery Act requires a finding that specified individuals at the school have actual notice of the sexual harassment or allegations of sexual harassment.  The Department specifies that a formal complaint will need to be made to a school’s Title IX coordinator, any official of the school who has the authority to institute corrective measures, or, in the elementary and secondary context, a teacher (in the case of student-on-student harassment).  Additional commentary on formal complaints is found below.

Cross-Examination and Live Hearings

Perhaps the most controversial aspect of the proposal is the requirement that accused student will be allowed the opportunity to cross-examine their accuser at a live hearing, but it must be through the use of a third-party. This was a relatively expected addition, as in September 2018, the U.S. Court of Appeals for the Sixth Circuit Court ruled in John Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989), that university officials must give accused students the opportunity to meaningfully cross-examine witnesses to preserve due process rights. 

Proposed changes to the grievance process will require institutions of higher education to provide for a live hearing where each party will be permitted to “ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.” 

The proposal requires questioning to be conducted by the party’s advisor of choice, and also clarifies that an institution will continue to maintain discretion as to how these advisors will be permitted to participate in other phases of the grievance process. Specifics as to what questions may be asked and for what purposes, is also included in the proposal.

Logistics as to how to provide such a live hearing, while respecting the positions of the parties, are also suggested in the proposal (use of separate rooms with video equipment allowing re-time questioning).

The Department is not suggesting a requirement for live hearings at the elementary and secondary level. However, in the absence of a live hearing, each party must still be provided  the  opportunity  to  conduct  its  questioning  of  other  parties  and  witnesses  by  submitting written questions to the decision-maker. The decision-maker must then provide the answers to the asking party and allow for additional, limited follow-up questions from each party. 

Under the proposal, schools will not be required to offer an appeal process.  However, those that do offer such a measure must allow the opportunity for both parties to appeal.

Critics have opined that requiring a live hearing may place additional burdens on small college campuses where there is a limited pool of hearing panelists. Under the proposal, a policy of using single investigator to determine whether campus policies were violated will not comply with the amended regulations as proposed.   

New Definition of Sexual-Harassment

Under prior Title IX guidance, sexual harassment was defined as “unwelcome conduct of a sexual nature.” The proposal would define sexual harassment to include:

(i). An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct;

(ii). Unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s educational program or activity,” (emphasis added); or

(iii). Sexual assault, as defined in 34 CFR 668.46(a).

In creating this definition, the Department has drawn from two “foundational decisions” by the Supreme Court in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998) and Davis. While the proposed definition reads “severe, pervasive and objectively offensive,” many critics are already pointing out that since Davis the Supreme Court’s application has made clear that harassment could be offensive based on its pervasiveness alone.

Investigation of Formal Complaints

The proposal provides that a school has the responsibility to investigate when a formal complaint has been filed and the alleged incident(s) happens on campus, or within an educational program or activity.

Questions are already arising on what this will mean for sexual misconduct incidents such as those occurring in nearby off-campus apartments. 

The proposal defines “formal complaints” as those complaints filed by an official who has the ability to remedy the situation. A formal complaint is a “document signed by a complainant or by the Title IX Coordinator alleging sexual harassment against a respondent about conduct within its education program or activity, and requesting the initiation of the recipient’s grievance procedures . . . .” Formal complaints are those reported to “the Title IX Coordinator or another person to whom notice of sexual harassment results in the recipient’s actual knowledge . . . .” 

Again, as pointed out earlier, the proposal defines “actual knowledge” as notice of sexual harassment to a school’s Title IX Coordinator, or “any official of the recipient who has authority to institute corrective measures on behalf of the recipient, or a teacher in the elementary and secondary context with regard to student-on-student harassment.” This new definition is not expected to include individuals on college campuses such as college professors or resident advisors.

In the “Summary of the Education Department’s Proposed Title IX Regulations,” the Department specifically states that “the alleged harassment must have been perpetrated against a person ‘in the United States’ (affecting, for example, study abroad programs); this is a necessary condition because the text of Title IX statute limits protections to ‘person[s] in the United States.” As such, students in study-abroad programs would fall outside of Title IX.

Standard of Evidence

Although schools will be allowed to use either the “preponderance of the evidence standard,” or the “clear and convincing standard” when reaching a determination regarding responsibility, the proposal makes it very clear a preference for use of the higher clear and convincing standard. 

The Department states, “that the preponderance standard be used only if it is also used for conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanction,” and “the  Department  believes  that  in  light  of  the  due  process  and  reliability  protections  afforded  under  the  proposed  regulations,  it  could  be  reasonable  for  recipients  to  choose  the  preponderance  standard  instead  of  the  clear  and  convincing  standard,  and  thus,  it  is  appropriate for the Department to give them the flexibility to do so. The -proposal will also require a school to use the same evidentiary standard for Title IX matters involving student-on-student incidents, as staff/faculty-on-student incidents.

Informal Resolution Process

The proposal provides schools with a wider-range of resolution opportunities.  In particular, schools would be able to utilize an informal resolution process, such as mediation-style process, or an arbitration-style process, that would not involve a full investigation and adjudication, provided that the recipient provides to the parties a written notice and obtains the parties’ “voluntary written consent to the informal resolution process.” Whether an informal resolution process is appropriate is dependent upon factors such as “age, developmental level, and other capabilities of the parties; the knowledge, skills, and experience level of those facilitating or conducting the process; the severity of the misconduct alleged; and the likelihood of recurrence of the misconduct.”

The above list is not the entire list of proposed changes, but highlights what we see to be the most impactful on educational institutions at every level. Other proposals affect the period of retention on documentation (three years), and notice requirements for parties involved in a grievance proceeding. 

What’s Next?

While the Department released the proposal on Friday, Nov. 16, any changes to Title IX would not occur until after a 60-day public comment period. This comment period will not start until after the proposal is published in the Federal Register. Many expect that to happen before the end of November.

If you would like to weigh in on the proposed changes, the Department has advised that comments may be submitted through “the Federal Rulemaking Portal or via postal mail, commercial delivery, or hand delivery.” They also state specifically that email or fax comments will not be accepted. 

Please stay tuned for additional updates on The Sophisticated Employer, as more information becomes available.

Click here for the full release from the Department of Education.