An Educational Institution’s Survival Guide for the Final Title IX Regulations

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 Rundown

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. 

    1. Notice to the Institution
      1. 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.
      2. 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].”
    2. Definition of Sexual Harassment
      1. 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).
      2. Requires the conduct to be severe and pervasive and objectively offensive conduct.
    3. 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.”
    4. 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.”
    5. 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.
    6. Informal and Formal Complaints – any person may report sex discrimination at any time.
    7. Deliberate Indifference Standard – institutions must respond promptly in a manner that is not clearly unreasonable in light of the known circumstances.
    8. Mandatory Response Obligations
      1. Institutions must offer supportive measures to the complainant.
      2. Title IX Coordinator must contact the complainant confidentially.
      3. Institutions must follow Title IX’s grievance process before imposing any disciplinary sanctions.
      4. Institutions may not restrict Constitutional protections.
      5. Institutions must investigate sexual harassment allegations in any formal complaint.
      6. 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.
      7. 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.
    9. Procedure Once an Institution Has Received Actual Knowledge
      1. Treat complainants and respondents equitably;
      2. Remedies must be designed to maintain complainant’s equal access to education;
      3. 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;
      4. Ensure that coordinators, investigators, or decision-makers do not have conflicts of interest or bias against either the complainant or respondent;
      5. 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:
      6. Rely on the presumption that the respondent is not responsible for the alleged conduct unless proved otherwise at the conclusion of the grievance process;
      7. Complete the grievance process reasonably promptly;
      8. Describe the range of possible sanctions and remedies;
      9. Describe the standard of evidence to be used to determine responsibility;
      10. Describe the procedures and bases for appeal;
      11. Describe the range of supportive measures available; and
      12. Post materials used to train Title IX personnel on their website.
    10. 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.
    11. 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.
    12. 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:
      1. 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).
      2. Cross examination questions must be relevant and the decision-maker must first determine the relevancy before the question is answered.
      3. At the request of either party, the institution must provide for the entire hearing to occur with the parties located in separate rooms.
      4. 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.
      5. Create an audio or audiovisual recording or transcript of the hearing.
      6. Rape Shield Protections make irrelevant any questions related to complainant’s prior sexual behavior with limited exceptions.
    13. 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.
    14. 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.
    15. 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.
    16. 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.
    17. 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.
    18. 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.
    19. 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.

SCOTUS Reverses “Bridgegate” Convictions: Conduct was Corrupt – But Not a Federal Crime

On Thursday, the U.S. Supreme Court reversed the convictions of two of the principles of the scheme to exact political revenge by altering the traffic patterns at the entrance of the George Washington Bridge in 2013. The Court ruled that because the scheme itself did not aim to obtain money or property, the defendants could not have committed wire fraud or federal program fraud. The decision by a unanimous Court reversed the decision of the Third Circuit Court of Appeals, which had affirmed the convictions of Bridget Anne Kelly and William Baroni.

The convictions at issue in the case arose out of a plan to cause major traffic problems for residents of Fort Lee, New Jersey as retribution for the refusal by its Mayor to endorse then Governor Chris Christie’s bid for reelection. The architects of the plan were Kelly, then governor Christie’s Deputy Chief of Staff; Baroni, then Deputy Executive Director of the Port Authority of New York and New Jersey; and David Wildstein, another Port Authority official, who, like Baroni, had been appointed to the post by Governor Christie. 

In 2013, there was a significant effort on behalf of the Governor, with Kelly leading the way, to garner widespread support for Governor Christie’s reelection from local officials. In the summer of 2013, one such local official, Fort Lee Mayor Mark Sokolich, informed Kelly that he would not being endorsing Governor Christie. When Kelly reached out to Wildstein for ideas on how to retaliate against Sokolich, Wildstein suggested that eliminating the dedicated Fort Lee lanes on the toll plaza of the George Washington Bridge would cause rush-hour traffic to back up onto lo­cal streets, leading to gridlock there. Kelly thought that was a good idea, and wrote an email to that effect back to Wildstein. Kelly and Wildstein then secured Baroni’s approval of the plan. 

When fully operational the George Washington Bridge, which spans the Hudson River between Fort Lee and Manhattan, has twelve lanes with tollbooths that feed into the bridge’s upper level from the Fort Lee side. For decades the basic mode of operation for morning commutes on the bridge was for 9 of the 12 lanes to carry traffic coming from nearby highways, with the three remaining lanes to serve only cars coming from Fort Lee. The plan agreed upon by Wildstein, Kelly and Baroni was to reduce those three lanes available to Fort Lee residents down to one

The cover story for the scheme was that the planned lane change was part of a traffic study. In an attempt to add some authenticity, Wildstein told the Port Authority’s engineers to collect some numbers on how far back the traffic was delayed. In addition to tasking the engineers with fake data collection, Baroni, Wildstein, and Kelly also agreed that the Port Authority should incur the cost of additional toll collectors to provide relief to the toll collectors working at the single remaining Fort Lee designated toll both.    

On September 9, 2013, the plan was put into action, with predicable results. The town’s streets almost immediately came to a standstill, school buses stood in place for hours, and first responders were hindered in attending to emergencies. Despite the overwhelming adverse impact, Kelly, Baroni, and Wildstein kept the plan in place for three more days.  

When the scheme and resulting chaos came to light, each of the three individuals were removed from their positions, and eventually were charged with wire fraud, federal program fraud and conspiracy to commit each of those crimes. Wildstein pleaded guilty to conspiracy charges and agreed to cooperate with the Government. Baroni and Kelly went to trial and were eventually found guilty of all charges. On appeal to Third Circuit, where Baroni and Kelly argued that the evidence was insufficient to sustain a conviction, the convictions were affirmed. 

In delivering the opinion of the Court, Associate Justice Elena Kagan noted that both of the principal substantive charges at issue, wire fraud and federal program fraud, target fraudulent schemes to obtain property. The critical question before the Court, therefore, was not whether the trial evidence demonstrated “wrongdoing—deception, corruption, abuse of power.” The question rather was whether the defendants committed property fraud. The Court reasoned that under either of the wire fraud or federal program fraud statutes, the Government had to show not only that Baroni and Kelly engaged in de­ception, but that an object of their fraud was property, citing the Court’s prior decision in Cleveland v. United States, 531 U. S. 12, 26 (2000). 

The government argued that the deceit of Baroni and Kelly had property as its object in two ways by (1) taking control over the physical lanes on the bridge for the wrongful purpose and (2) depriving the Port Authority of the costs of compensating the engineers and toll-collectors for the tasks they carried out at the direction of Wildstein and Baroni. The Court disagreed, finding instead that the realignment was a “quintessential exercise of regulatory power.” As a result, neither the use of the bridge or the taking of the time of the Port Authority engineers and toll collectors were objects of the fraud. The Court contrasted those actions with examples of cases where a public official uses a public employee’s time to provide personal services to the public official or to provide services for a political contributor. 

The Court found that the time and labor of Port Au­thority employees were just “an incidental (even if foreseen) byproduct of Baroni’s and Kelly’s regulatory object.” The Court’s opinion leaves little doubt that the trial evidence demonstrated that the actions of the defendants constituted an abuse of power. Nonetheless, it found that the scheme here did not aim to obtain money or property, and as a result Baroni and Kelly could not have violated the federal-program fraud or wire fraud laws. A copy of the full opinion can be found here.