Almost a year and a half after publishing its proposed Title IX regulations, and amid a nationwide pandemic, the U.S. Department of Education (DOE) took momentous action on Wednesday when it published a 2,000+ page, unofficial version of its final regulations (the Final Rule). To aid in your review, we have distilled its six key provisions, as identified by advocacy groups, educational institutions, lawyers, Title IX coordinators, and the like, and briefly outlined the differences between the proposed language in the Notice of Proposed Rule Making (NPRM) and how the provision appears in the Final Rule.
Narrow Definition of Sexual Harassment
The Final Rule defines sexual harassment as conduct on the basis of sex that satisfies one or more of the following: (i) an employee conditioning educational benefits on participation in unwelcome sexual conduct (i.e., quid pro quo); (ii) unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the educational institution’s education program or activity; or (iii) sexual assault (as defined in the Clery Act) or dating violence, domestic violence, or stalking as defined in the Violence Against Women Act (VAWA). Among other things, this updated definition places a heightened burden on survivors by requiring them to prove the unwelcome conduct was severe and pervasive and objectively offensive.
Option of Heightened Burden of Proof
The Final Rule allows decision-makers to choose whether to apply the lower preponderance of the evidence standard or the higher clear and convincing evidence standard in determining responsibility for alleged sexual harassment. The educational institution’s grievance process must state its chosen standard and apply the same standard for formal complaints lodged against students and employees. In doing so, the Final Rule removes the proposed restriction that would have allowed educational institutions to use the preponderance of the evidence standard only if they used the same standard for all other code of conduct violations that carry the same maximum sanctions as sexual harassment.
Responsibility to Investigate
The Final Rule clarifies the scope of Title IX complaints that require a response from the educational institution. Educational institutions must now “respond when sexual harassment occurs in the school’s education program or activity, against a person in the United States.” “Education program or activity” includes (i) a location, event, or circumstance during which the educational institutional exercised substantial control over the respondent and the context in which the alleged sexual harassment occurs; and (ii) a building owned or controlled by a student organization that is officially recognized by a postsecondary institution, such as a fraternity or sorority house.
Mandatory Response Obligations
An educational institution must respond promptly to Title IX claims in a manner that is not deliberately indifferent, meaning “in a way that is not clearly unreasonable in light of the known circumstances.” All educational institutions now are required to offer supportive measures to all complainants regardless of the existence of a formal complaint.
The educational institution’s mandatory response to a Title IX complaint must: (i) include prompt contact by the Title IX Coordinator with the complainant to offer and discuss supportive measures, and the complainant’s wishes for same, regardless of the existence of a formal complaint, and to explain the formal complaint process; (ii) follow a complaint grievance process before the imposition of disciplinary sanctions or other measures against a respondent; and (iii) protect the parties’ rights under the U.S. Constitution.
Live Hearing and Cross-Examination
Educational institutions must have a grievance process that provides for a live hearing. Upon the request of either party, the educational institution must allow the parties to participate in the live hearing in separate rooms, with technology enabling the decision-maker and parties to simultaneously see and hear each other. Educational institutions must create an audio or audiovisual recording, or written transcript, of any live hearing and make it available to the parties for inspection and review. The educational institution must provide a party with an advisor if he/she does not have one present at the live hearing; however, the advisor must be provided without fee or charge and will be chosen by the educational institution. The provided advisor may be, but is not required to be, an attorney.
The NPRM raised concerns about the potential of subjecting survivors to additional trauma during cross-examination. The Final Rule clarifies the scope and manner of cross-examination and other questioning by specifying that each party’s advisor, not the party personally, will be allowed to orally ask all relevant questions and follow-up questions in real time. The decision-maker must determine the relevancy of any questions and explain any decision it makes to exclude a question prior to a party’s or witness’s answer.
In reaching their determinations after the hearing, decision-makers cannot rely on any statement of a party or witness who does not submit to cross-examination. Regardless, a decision-maker cannot draw an inference from a party’s or witness’s absence from the live hearing or refusal to answer questions.
Informal Resolution
In addition to any formal resolution under the educational institution’s policy, the institution may also offer informal resolution options if a formal complaint is filed, but only with the voluntary, informed, written consent of all parties. Prior to reaching an agreement as part of this informal process, a party can withdraw and resume the grievance process with respect to a formal complaint. Under no circumstance may an educational institution (i) require students and employees to waive the right to an investigation and adjudication of a formal complaint as a condition of new or continued enrollment/employment or the enjoyment of any other right; or (ii) offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student.
To assist institutions in understanding what the Final Rule means for them, we have joined a consortium of various organizations, educational institutions, and attorneys to collaborate on publishing a Joint Guidance that analyzes the Final Rule and any variance from the NPRM with great specificity. We will continuously update the Joint Guidance publication as additional resources become available and as we make our way through the Final Rule. For now, educational institutions subject to Title IX should begin consulting with counsel to determine if they need to make any necessary revisions to their Title IX policies, and to be informed about the implications of the Final Rule for the educational institutions’ current protocols. Educational institutions seeking guidance on policy or procedure updates, or any other questions, should feel free to contact Michael Volpe, Doreen Martin, Allison Gotfried, or any other member of Venable’s Higher Education or Labor and Employment Group.