Schools, colleges, and other recipients of federal funds will be at risk of non-compliance with the newly released Title IX regulations unless they overhaul their policies aimed at eradicating and responding to sex-based discrimination by August 14, 2020.
In a video announcement, Secretary Betsy DeVos provided additional information about the new regulations. She emphasized that over 170 court cases brought by both survivors and accused parties demonstrated the need for regulations that focus on procedural fairness. In addition, she reiterated the Department’s focus on sex discrimination in elementary and secondary schools, which we previously summarized.
Title IX is a federal statute, and its regulations dictate how schools and colleges handle complaints of sexual harassment and sexual assault, among other things. This list of top issues is a starting point for covered institutions:
- Narrows the definition of sexual harassment by requiring all three of the following elements: the conduct must be (1) severe; and (2) pervasive; and (3) objectively offensive, effectively denying equal opportunities for educational access.
- Mandatory dismissal from the Title IX response process when complaints do not meet all three definitional elements.
- Permits institutions to use separate code of conduct provisions to address misconduct that does not rise to the level of a Title IX violation.
- Allows for either the preponderance of the evidence standard or the clear and convincing evidence standard to be used when determining whether a respondent is responsible for violating the institution’s policy.
- The standard must be stated in the institution’s grievance procedures.
- The standard must be the same regardless of whether the respondent is a student or an employee.
- Imputes some courtroom-style formal adjudication standards and rules into the Title IX hearing process, such as:
- Rape shield protections that prevent a party from undermining another’s credibility by referring to the person’s sexual history outside of the context of the conduct at issue.
- Limited discovery procedures that require evidence to be disclosed in advance.
- Preserving legally recognizable privileges.
- Live hearings with both parties physically or virtually present (for postsecondary institutions; live hearings are optional for K-12 schools and other intuitions).
- Must have the opportunity for cross-examination by the party’s advisor. A party to the hearing is prohibited from conducting cross-examination.
- Transcripts or recordings must be made for all live hearings.
- For K-12 schools, complaint resolution without a hearing is permitted but parties are permitted to make inquiries and respond to allegations in writing, which is meant to preserve the credibility determination process and confrontation aspects of a live hearing.
- The Title IX Coordinator, a required position, cannot be the decision-maker who issues a written determination regarding the allegations in the complaint.
- Expands the universe of employees whose knowledge of a potential policy violation triggers the institution’s response with or without the filing of a formal complaint.
- Limits the Title IX formal complaint procedures to complainants who are currently participating or attempting to participate in an educational program or activity at the time the formal complaint is filed.
- Institutions bear the burden of gathering evidence and the burden of proof.
- Prohibits “gag orders” in order to promote the ability of the parties to discuss the allegations or gather evidence.
- Requires a party’s voluntary, written consent in order to access medical, psychological, or similar treatment records.
- Requires training Title IX personnel on specific aspects of the regulation, including how to conduct hearings, and requires institutions to publicly post materials used for training on their websites.
The Department has created a summary of the major changes, but practical application of the minute details will likely be as important for compliance as application of the major changes will be. As the dust settles, Barley Snyder will provide a deeper dive into some of the most significant aspects of the regulations in future alerts.
If you have any questions on the impact the final Title IX regulations have on your school or college policies, please reach out to any member of the Barley Snyder Education Practice Group.