After notice and comment, the Department of Education recently released its final rule governing how schools are required to handle allegations of sexual harassment and sexual assault with respect to education “programs or activities” that receive federal financial assistance. Education programs or activities is broadly defined and includes locations, events or circumstances over which the school exercised substantial control over the alleged respondent/perpetrator and the context in which the sexual harassment occurred. It applies to all the programs or activities whether such programs or activities occur on or off campus. Unlike the 2011 and 2014 Dear Colleague letters under the Obama administration, the new regulations have the force of law. Schools are expected to comply with the regulations by August 14, 2020.
Nearly every post-secondary institution will need to substantially update their Title IX policies and procedures to comply with the new regulations. In addition to new disclosure and training requirements, schools must have grievance, investigation, and hearing procedures that comply with the expanded due process requirements of the final rule.
According to Assistant Secretary Kenneth L. Marcus of the Department of Education’s Office for Civil Rights (“OCR”), the new rules are designed to end “the false dichotomy of either protecting survivors, while ignoring due process, or protecting the accused, while disregarding sexual misconduct.” Historically, institutions have had difficulty navigating the Title IX investigative process, exposing themselves to private lawsuits from plaintiffs representing a reporting or responding party to the investigation, or both. Additionally, OCR has the authority to investigate an institution’s compliance with Title IX regulations, including the institution’s handling of Title IX investigations. OCR is also empowered to sanction noncompliant institutions by terminating an institution’s participation in federal student aid programs.
The new rule codifies recommendations announced in prior guidance that require schools to provide interim measures to complainants whenever designated officials have actual knowledge of a reported violation. The new regulations also require the provision of “supportive measures” to complainants before and during any formal proceedings. These measures may include counseling, extensions of deadlines, modifications of course schedules, leaves of absence, or other measures. Complainants also retain the right to determine whether the school should investigate a complaint unless the Title IX coordinator determines a failure to investigate would be unreasonable in light of known circumstances.
In the event a formal complaint is filed, the institution must investigate the complaint subject to substantial procedural requirements. Those requirements include allowing both parties to present fact and expert witnesses and other inculpatory and exculpatory evidence, providing written notice to the parties of any investigative meetings or interviews, and affording an opportunity to review and respond to any evidence related to the allegations. Schools are also expressly prohibited from restricting a party’s ability to discuss the allegations with others.
Following the investigation, schools are now required to conduct live hearings to adjudicate sexual assault complaints, which also involve mandated processes and procedures. Parties must be allowed to present witnesses on their own behalf and cross examine any of the opposing party’s witnesses. Each party is entitled to have an advisor present, which may be an attorney, and, if a party does not have an advisor, the school is obligated to provide one to conduct cross-examination on behalf of that party. Hearings must be recorded, and parties have the right to appeal any final determination. The new rule does away with the requirement OCR issued during the Obama administration that institutions use the “preponderance of the evidence” standard when adjudicating Title IX complaints of sexual misconduct. Schools are now given the option of using the “clear and convincing evidence” standard, which imposes a greater standard of proof on the complainant, though the school must use its chosen standard consistently to all formal complaints of sexual harassment or assault. The decision of hearing officer(s) at the hearing must also be subject to an appeal process.
Schools should immediately begin reviewing and revising their existing Title IX investigation and adjudication polices as soon as possible to comply with the new regulations and meet the August 14, 2020 deadline. It is also important to ensure that the institution has properly identified personnel who will perform key roles in the process such as Title IX coordinator, Title IX investigator, hearing officers, and appeal hearing officers. Each of these key persons must have received proper training and must be able to demonstrate that they can serve in their official capacity without any apparent bias for or against either reporting or responding students. Gombos Leyton’s attorneys have extensive experience in helping schools develop complaint and effective Title IX policies and procedures, as well as representing institutions in OCR investigations and in private litigation. Our goal is to help institutions faithfully discharge their duty under the federal law and manage private litigation exposure.