Title IX’s Final Rule: New Regulations on Sexual Harassment

The U.S. Department of Education recently released its long-awaited “Final Rule” under Title IX of the Education Amendments of 1972. The Final Rule, which will take effect on August 14, 2020, includes sweeping changes from Obama-era guidance. While there are many nuances of the Final Rule, this article focuses on several core aspects related to educational institutions’ response to sexual harassment.

How Schools Must Respond to Allegations or Notice of Sexual Harassment

The Final Rule mandates that an institution with actual knowledge of sexual harassment that occurred in the school’s education program or activity against a person in the United States must respond promptly in a manner that is not deliberately indifferent, which includes the provision of appropriate supportive measures.

Here are a few key points to note related to this standard:

• Actual knowledge means notice of sexual harassment or allegations of sexual harassment to the institution’s Title IX Coordinator or any official authorized to institute corrective measures for the institution,[1] or to any employee of an elementary and secondary school.
• Sexual harassment means conduct on the basis of sex that satisfies at least one of the following:
  • A school employee conditioning an educational benefit or service upon a person’s participation in unwelcome sexual conduct (i.e. “quid pro quo” harassment);
  • Unwelcome conduct determined by a reasonable person to be so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school’s education program or activity; or
  • Sexual assault, dating violence, domestic violence or stalking (as those offenses are defined in the Clery Act, 20 U.S.C. § 1092(f), and the Violence Against Women Act, 34 U.S.C. § 12291(a)).
• Education program or activity includes locations, events or circumstances — whether on campus or off campus — over which the institution exercised substantial control over both the respondent and the context in which the sexual harassment occurs. It also includes any building owned or controlled by an officially recognized student organization, such as fraternity or sorority houses.
• The Final Rule applies only to a person in the United States. Accordingly, the new regulations do not cover students participating in study abroad programs outside the country. However, the Final Rule does not prohibit a school from addressing conduct that does not fall within the scope of Title IX under the institution’s own policies, including offering supportive services or disciplining an alleged perpetrator.
• A school is deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light of the known circumstances. The new regulations enumerate several mandatory response obligations, such as offering supportive measures[2] to every complainant (regardless of whether or not a formal complaint is filed) and requiring schools to follow an equitable formal grievance process before disciplining a respondent.

How Schools Must Respond Upon Receipt of a Formal Complaint

The Final Rule draws a clear distinction between a formal complaint and other allegations of sexual harassment. Specifically, a formal complaint is a document filed by a complainant (i.e. the alleged victim) or signed by the Title IX Coordinator alleging sexual harassment against a respondent (i.e. the alleged perpetrator) and requesting that the school investigate the allegation of sexual harassment.

Schools must investigate the allegations in every formal complaint and send written notice to both parties of the allegations contained in the formal complaint. The burden of gathering evidence and the burden of proof must remain on schools, not on the parties, during the investigatory process. At the conclusion of the investigation, the school must send the parties (and their selected advisors — who may be, but need not be, an attorney) an investigative report and provide at least 10 days for the parties to respond.

Notably, schools must dismiss allegations of conduct that do not meet the Final Rule’s definition of sexual harassment or that did not occur in a school’s education program or activity against a person in the United States. (Such dismissal is only for Title IX purposes and does not preclude the school from addressing the conduct in any manner the school deems appropriate.) Similarly, schools may, in their discretion, dismiss a formal complaint if the complainant withdraws the formal complaint, if the respondent is no longer enrolled or employed by the school, or if specific circumstances prevent the school from gathering sufficient evidence to reach a determination.

Following the investigation, postsecondary institutions must then provide for a live hearing. (Hearings are optional for K-12 schools.) At the hearing, the decision-maker(s) — who cannot be the same person as the investigator or Title IX Coordinator — must permit cross-examination where each party’s advisor is allowed to ask the other party and any witnesses any relevant questions, including those challenging credibility. If a party does not have an advisor present at the hearing, the school must provide an advisor of the school’s choice for free. (Again, the advisor may be, but is not required to be, an attorney.) If a party or witness refuses to submit to cross-examination, the Final Rule precludes the decision-maker from relying on the party or witness’s statements in reaching a determination regarding responsibility. Additional guidance with more details related to the hearing process will soon be published in a follow-up article.

The Final Rule permits schools to use a preponderance of the evidence standard or the clear and convincing evidence standard. Regardless of the school’s choice, the school must apply the same standard for all formal complaints of sexual harassment, whether the respondent is a student or an employee (including faculty member).

At the conclusion of the hearing, the decision-maker must issue a written determination regarding responsibility with findings of fact, conclusions about whether the alleged conduct occurred, rationale for the result as to each allegation, any disciplinary sanctions imposed on the respondent, and whether remedies will be provided to the complainant.

Finally, the Final Rule requires schools to offer equally to both parties a right of appeal regarding the determination of responsibility or dismissal of a formal complaint. The Rule limits the bases for appeals, however, to procedural irregularities that occurred during the hearing, conflicts of interest and newly discovered evidence — all of which must affect the outcome of the proceedings to warrant a reversal of the underlying determination.

For additional guidance or training on revising your institution’s current policies, ensuring compliance with the new Title IX regulations or conducting formal grievance proceedings, please contact a member of Robinson Bradshaw’s Education Practice Group.

[1] This standard allows postsecondary schools to authorize certain employees to take corrective measures while other employees — without such authorization — can serve as confidential resources with whom students can discuss sexual harassment without automatically triggering any obligation to report the student’s allegations to the school’s Title IX Coordinator. K-12 schools are required to respond whenever any employee has notice of sexual harassment or allegations of sexual harassment.

[2] Individualized services reasonably available that are non-punitive, non-disciplinary and not unreasonably burdensome to the other party while designed to ensure equal educational access, protect safety or deter sexual harassment.