Title IX prohibits discrimination on the basis of sex in all educational institutions receiving federal funding.
On May 6, 2020, in the midst of the school closings due to COVID-19, Betsy DeVos and the Department of Education issued new regulations promised by the then-Acting Assistant Director of the Office for Civil Rights (OCR) Candice Jackson on September 22, 2017.
Unlike OCR’s previous “Dear Colleague Letters,” the proposed regulations were published in the Federal Register on November 29, 2018, and the 38-page document was open for notice and comment according to the Administrative Procedures Act, as required for official agency rulemaking.
The proposed regulations received 124,149 comments, about equally divided for and against many of the provisions. However, since the Department’s treatment of all comments must be explained, the unofficial version of the Final Rule is 2,033 pages long, not 38 pages, and it is not yet published in the Federal Register.
The Final Rule itself, without consideration of the public comments, substantially mirrors the proposed regulations. Like the proposed regulations, the Final Rule appears directed mostly, if not completely, to institutions of higher education.
Under the new Rule, perhaps the most controversial provisions involve new evidentiary standards and live cross-examination of parties and witnesses to sexual misconduct. Contrary to the former Obama-era Dear Colleague Letters which required that all educational institutions use the preponderance of evidence standard in adjudicating sexual misconduct allegations, the new rule allows institutions to choose to apply the preponderance of evidence standard as the burden of proof, or the more stringent standard, clear and convincing evidence.
Criticism has been voiced that if institutions, each of which receives federal Title IX funding, are left under statutory auspices to individually make such an important choice, such choices may compromise administration of justice and even promote “standard-shopping” among miscreants.
The live hearing cross-examination provisions are also being criticized as possibly re-traumatizing victims of sexual assault and even preventing complainants from coming forward. However, the Final Rule provides that cross-examination will be conducted by advisers to the parties, such as legal counsel, not by the parties themselves.
The Final Rule also narrows the scope of off-campus sexual misconduct that colleges and universities must investigate, to complaints of misconduct that occur within the officially recognized educational program, such as in houses owned by the institution like sorority and fraternity houses.
Other complaints would not be investigated as Title IX complaints, but could be handled under the institutions’ Codes of Conduct. Incidents occurring during programs abroad also would not need to be investigated under Title IX, but institutions would be free to do so.
Stalking, domestic violence, and dating violence are now considered under the Final Rule as instances of sexual harassment under Title IX, but the definition of sexual harassment is more narrowly defined than in past Title IX guidance. Sexual harassment is now “any unwelcome conduct that a reasonable person would find so severe, pervasive and objectively offensive that it denies a person equal educational access,” bringing the definition of sexual harassment closer to the judicial standard enunciated in the 1999 Supreme Court’s Davis v. Monroe County Board of Education decision. However, the “severe, pervasive and objectively offensive” qualities need not be present in cases of sexual assault, stalking, domestic violence, and dating violence.
Time frames for investigations are not specified, and “gag orders” are removed so that parties may speak freely about allegations. One of the most manpower-focused provisions expands the “single investigator” model in which one official of the institution handles the investigation, the adjudication, and determines the sanctions to be applied.
Under the Final Rule, three separate officials or offices are required. A Title IX coordinator must receive the complaint, a separate official must investigate the complaint, and another official must be the decision-maker and determine sanctions.
All personnel must also be trained, and signage must publish the new policies and procedures.
So What Does This Mean for Your College or University?
Contrary to the former Dear Colleague Letters issued by OCR, which were considered by the Office for Management and Budget to be “significant guidance,” the new rules will carry the force of law.
According to the Final Rule, educational institutions must comply with the new rule by August 14, 2020, little more than three months from now, with only their essential personnel announcement coming at a time when all colleges and universities are shuttered by the pandemic and only essential personnel are on campuses.
Lawsuits will surely follow! This is a time for higher education officials to be in touch with legal counsel.
If you have any questions, please consult with your legal counsel or one of the higher education attorneys at KingSpry.
This Collegiate Comment is a publication of the KingSpry Higher Education Law Division. It is meant to be informational and does not constitute legal advice.