An Educational Institution’s Survival Guide for the Final Title IX Regulations
By: Kevin E. Raphael
On May 6, 2020 the U.S. Department of Education (DOE) released the long-awaited final Title IX regulations. The Final Regulations provide specific guidance to colleges and universities on how they must respond to allegations of sexual misconduct and other Title IX covered conduct. The Final Rule goes into effect on August 14, 2020.
The Final Regulations require significant changes, including that the educational institution: provide to Complainant and Respondent a full investigative report prior to any hearing; engage in a significantly more robust hearing process (following definitive guidance related to witness testimony, cross examination, evidence, transcripts/recordings of the hearings, and information that can be considered by the panel); publish a report setting forth the panel’s findings on responsibility; and offer specific guidance related to the appeal process.
How We Can Help
There are several obligations in the Final Regulations that likely will require modifications to many current Title IX policies. We can help with not only the revision of these policies, but also with the training of Title IX personnel and other relevant stakeholders to ensure full compliance throughout the Title IX process.
We can serve the role of an advisor on behalf of an institution in a live hearing, assisting the hearing panel to navigate the more robust hearing requirements and providing guidance and counsel to hearing panels when they formulate written determinations post-hearing. Further, we have substantial experience conducting Title IX investigations and preparing written investigative reports.
Please let us know how we may assist you in ensuring compliance with these Final Regulations.
The following guide lists some of the more significant changes mandated by the Final Regulations. Educational institutions can use this guide to determine what changes will need to be made to bring their Title IX policies and procedures into compliance.
- Notice to the Institution
- Notice to a Title IX Coordinator or to an official with authority to institute corrective measures, charges an institution with actual knowledge and triggers the school’s response obligation.
- Actual knowledge is defined as notice of sexual harassment or allegations of sexual harassment to an institution’s Title IX Coordinator or any official of the school “who has authority to institute corrective measures on behalf of the [institution].”
- Definition of Sexual Harassment
- Includes the following three types of misconduct on the basis of sex: (i) quid pro quo harassment by an institution’s employee; (ii) any unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal education; and (iii) any instance of sexual assault (as defined by the Clery Act), dating violence, domestic violence, or stalking (as defined by VAWA).
- Requires the conduct to be severe and pervasive and objectively offensive conduct.
- Required Response Limited to Campus-Sanctioned Programs or Activities – educational institutions only need to respond to complaints of misconduct that take place at an institution’s “program or activity.”
- Who is Required to Report Allegations of a Title IX Violation – only notice to certain employees of the educational institution trigger the obligation for the educational institution to respond to an alleged Title IX violation. Designated employees must be referred as the “Title IX Coordinator.”
- Notice of Title IX Protections – Institutions must notify students, employees, applicants for admissions and employment, and unions of the Title IX Coordinator’s contact information and must prominently display on their websites the Title IX Coordinator’s contact information.
- Informal and Formal Complaints – any person may report sex discrimination at any time.
- Deliberate Indifference Standard – institutions must respond promptly in a manner that is not clearly unreasonable in light of the known circumstances.
- Mandatory Response Obligations
- Institutions must offer supportive measures to the complainant.
- Title IX Coordinator must contact the complainant confidentially.
- Institutions must follow Title IX’s grievance process before imposing any disciplinary sanctions.
- Institutions may not restrict Constitutional protections.
- Institutions must investigate sexual harassment allegations in any formal complaint.
- Institutions must respect complainant’s wishes whether to investigate unless the Title IX Coordinator determines that continuing an investigation over the wishes of the complainant is not unreasonable.
- If allegations in the formal complaint do not met the definition of sexual harassment or did not occur at the institution, the institution must dismiss allegations for the purposes of Title IX but can still investigate the matter.
- Procedure Once an Institution Has Received Actual Knowledge
- Treat complainants and respondents equitably;
- Remedies must be designed to maintain complainant’s equal access to education;
- Evaluate all relevant evidence, including both inculpatory and exculpatory evidence, and avoid credibility determinations based on the person’s status as complainant, respondent, or witness;
- Ensure that coordinators, investigators, or decision-makers do not have conflicts of interest or bias against either the complainant or respondent;
- Training Title IX personnel on the definition of sexual harassment, scope of the institution’s programs or activities, how to investigate a complaint and perform the grievance process, how to serve impartially, and additional issues of relevance, including rape shield protections:
- Rely on the presumption that the respondent is not responsible for the alleged conduct unless proved otherwise at the conclusion of the grievance process;
- Complete the grievance process reasonably promptly;
- Describe the range of possible sanctions and remedies;
- Describe the standard of evidence to be used to determine responsibility;
- Describe the procedures and bases for appeal;
- Describe the range of supportive measures available; and
- Post materials used to train Title IX personnel on their website.
- Ongoing Obligation to Provide Written Notice to Parties – institutions must provide written notice to the parties containing Title IX procedures, a detailed statement of the allegations, investigations, hearings and meetings.
- Advisors– Parties can select an advisor of the party’s choice. If a party does not have an advisor, the institution must provide one without a fee.
- Live Hearings for Institutions of Higher Learning – a meaningful change to the regulation requires colleges and universities that receive federal funding to include a live hearing as part of the Title IX process. The requirements for a live hearing include:
- Each party’s advisor must be permitted to cross-examine the other party or witnesses and must be conducted directly, orally and in real time by the party’s advisor (not by the party personally).
- Cross examination questions must be relevant and the decision-maker must first determine the relevancy before the question is answered.
- At the request of either party, the institution must provide for the entire hearing to occur with the parties located in separate rooms.
- If a party or witness decides not to submit to cross-examination, the decision-maker may not rely on any statement of that witness in reaching an ultimate determination.
- Create an audio or audiovisual recording or transcript of the hearing.
- Rape Shield Protections make irrelevant any questions related to complainant’s prior sexual behavior with limited exceptions.
- No More “Single-Investigator” Model – the decision-maker cannot be the same person as the Title IX Coordinator or the investigator, moving away from the current single-investigator model.
- Requirement of a Final Report – Perhaps most drastic for those who will serve as decision-makers, the regulation, if passed, requires the decision-maker to draft a final determination following the hearing, essentially rendering an opinion for the record.
- Evidence Requirement – the burden of gathering evidence and burden of proof remains on the institutions. Institutions cannot restrict the parties from discussing the allegations or gathering evidence. At least ten days prior to a hearing, the institution needs to provide the parties with evidence directly related to the allegations.
- Investigative Report Requirement – at least ten days prior to a hearing, the institution needs to provide the parties with copies of an investigative report that details the relevant evidence.
- Standard of Evidence in Hearings – the institution may use either the preponderance of the evidence standard or the clear and convincing evidence standard. The standard used for students and employees must be consistent.
- Appeals – the institution must offer both parties an appeal on the following basis: (i) procedural irregularity; (ii) newly discovered evidence, and/or (iii) Title IX personnel had a conflict of interest or bias. Institutions may offer additional bases for an appeal.
- Informal Resolution – the institution may choose to offer informal resolutions, such as mediation or restorative justice, if both parties consent. An institution may not require the parties to participate in informal resolution and may not offer informal resolution unless a formal complaint is filed.
- Notice to the Institution