By Melissa Ackie, Darren Gibson, Eric Hoffman, Natalee Marion, and Ivie Guobadia Serioux on May 8, 2020
On May 6, 2020, the Department of Education (DOE) issued its Final Rule adopting amended regulations implementing Title IX of the Education Amendments of 1972 (Title IX).1 The Final Rule enacts sweeping changes to Title IX regulations, much of which was previewed in the notice of proposed rulemaking (NPRM) the DOE issued in November 2018. The adoption of the Final Rule marks the completion of the current administration’s decision, announced in September 2017, to rely on formal rule-making rather than the Title IX guidance the DOE issued during prior administrations, including the withdrawn 2011 Dear Colleague Letter and the withdrawn 2014 Q&A.2 The changes reflected in the Final Rule will require recipients of federal funds covered by Title IX, including institutions of higher education (IHEs), to reexamine their Title IX programs to ensure compliance with the new regulations.
The amended regulations will likely require substantial changes to IHE’s policies, procedures, trainings, and other Title IX-related programs. Furthermore, the “safe harbor” protections contained in the NPRM for compliance with the mandatory grievance procedures have now been removed from the Final Rule. Moreover, these changes will apply to sexual harassment complaints involving both students and employees, which may require fundamental shifts in the way that IHEs handle complaints of sexual harassment related to employees.
This article provides a summary of key provisions of the regulations, which will be found in Chapter 34, Part 106 of the Code of Federal Regulations, once they become effective. This article does not attempt to summarize every provision in the Final Rule, and IHEs should consult the amended regulations and additional guidance set forth in the Final Rule for a more complete picture of the changes made in the amended regulations.
Effective Date and Preparations
The effective date of the Final Rule is August 14, 2020, which means that the amended regulations will be in effect for the fall 2020 semester. These regulations affect a wide range of matters related to Title IX programs, such as the definition of sexual harassment, the process for conducting investigations and live hearings, and required training for Title IX Coordinators, investigators, and hearing officers, among many others. Accordingly, IHEs will need to begin working quickly and efficiently to ensure that the necessary changes to the institution’s Title IX program are considered and adopted prior to August 14, 2020.
The DOE expressly acknowledged its consideration of the COVID-19 national emergency in adopting the effective date of August 14, 2020. “The Department notes that recipients have been on notice for more than two years that a regulation of this nature has been forthcoming from the Department, and recipients will have substantially more than the minimal 30 days to come into compliance with these final regulations, which become effective on August 14, 2020.”3
Application to Employees and Students
The Final Rule makes clear that the amended regulations shall apply to students and employees of IHEs. The Final Rule states: “The Department agrees that students and employees, including faculty and student workers, should not be treated differently under its final regulations. Employees should receive the same benefits and due process protections that students receive under these final regulations, and these final regulations, including the due process protections in § 106.45, apply to employees.”4 While recognizing the circuit split with respect to whether employees have a private right of action under Title IX, the DOE noted, “Courts have not precluded the Department from administratively enforcing Title IX with respect to employees. The Supreme Court also expressly recognized the application of Title IX to redress employee-on-student sexual harassment in Gebser.”5
In summary, the Final Rule requires that the grievance procedures set forth in the regulations, particularly the provisions governing the grievance process in section 106.45, apply irrespective of whether the complaint or respondent is a student or employee.
Definition of Sexual Harassment for Title IX Purposes (Section 106.30)
The amended regulations provide a three-part definition of sexual harassment that continues the 2011 Dear Colleague Letter’s acknowledgment that sexual violence is a type of sexual harassment. Specifically, sexual harassment includes any of three types of misconduct on the basis of sex: (1) any instance of quid pro quo harassment by a recipient’s employee; (2) any unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal educational access; and (3) any instance of sexual assault (as defined in the Clery Act), dating violence, domestic violence, or stalking as defined in the Violence Against Women Act (VAWA). In adopting the severe, pervasive, and objectively offensive standard, and in rejecting the Title VII standard for sexual harassment, the Final Rule recognized that an institution of higher education differs from the workplace, and the adopted standard was intended to avoid infringing upon the First Amendment freedoms of students, teachers, and faculty. However, the Final Rule also recognizes that an IHE may continue to address harassing conduct that does not meet the Title IX standard under other provisions of the IHE’s code of conduct.
Definitions of Parties and a Complaint (Section 106.30)
The Final Rule clarifies the definitions of complainant, respondent, formal complaint, and supportive measures, definitions not previously addressed in either the text of Title IX or the federal implementing regulations. The lack of clear definitions had previously caused confusion as to who were considered parties, particularly when the alleged victim of sexual harassment was not the person making the complaint. A complainant is now formally defined as an individual who is alleged to be the victim of conduct that could constitute sexual harassment, or a parent who is legally authorized to act on behalf of the individual. The new regulations define respondent as an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment. Importantly, every complainant retains the right to refuse to participate in the grievance process.
A formal complaint is a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the IHE investigate the allegation of sexual harassment. At the time of filling a formal complaint, the complainant must be either participating in or attempting to participate in the educational program or activity of the recipient with which the formal complaint is filed. When a Title IX Coordinator signs a formal complaint, the Title IX Coordinator is not a complainant or a party during a grievance process. There is no time limit or statute of limitations on a complainant’s decision to file a formal complaint.
Finally, supportive measures are defined as 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. The definition of supportive measures is largely unchanged from the NPRM. However, the Final Rule clarifies that the purpose of any supportive measure is to provide equal access to education.
Sufficient Notice—Actual Knowledge (Sections 106.30(a) and 106.44)
One of the key components of the Final Rule is the requirement that a recipient have “actual knowledge” of sexual harassment (including allegations of sexual harassment) in an education program or activity to give rise to the obligation to “respond promptly in a manner that is not deliberately indifferent.” For IHEs, actual knowledge “means notice of sexual harassment or allegations of sexual harassment to a recipient’s Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient.”6 IHEs still have the option to expand mandatory reporting for all employees or to designate some employees as confidential resources for students to discuss sexual harassment without automatically triggering a report to the Title IX Office. However, the concepts of constructive notice and vicarious liability have been rejected in the amended regulations. In addition, the Final Rule states that this change ensures that compliance with Title IX focuses on the recipient’s conduct in response to such notice, and that a recipient cannot commit misconduct in violation of Title IX without actual knowledge of the sexual harassment that needs to be addressed.
Mandatory Response Obligations: Deliberate Indifference Standard (Section 106.44(a))
The Final Rule adopts the Supreme Court’s deliberate indifference standard set forth in Gebser and Davis7—applicable to private lawsuits for monetary awards—to Title IX’s administrative enforcement scheme. The Final Rule further specifies the actions that an IHE must take in response to every instance of actual knowledge of sexual harassment, with or without a formal complaint.
Specifically, an IHE’s mandatory response must be prompt; must consist of offering supportive measures to a complainant; must ensure that the Title IX Coordinator contacts each complainant to discuss supportive measures; consider the complainant’s wishes regarding supportive measures; inform the complainant of the availability of supportive measures with or without the filing of a formal complaint; and explain to the complainant the process for filing a formal complaint. Additionally, the IHE must treat complainants and respondents equally, meaning that for a respondent, following receipt of a formal complaint, the IHE must follow a grievance process that complies with the Final Rule before imposing disciplinary sanctions. Although the new regulations apply a deliberate indifference standard for evaluating a recipient’s decisions with respect to the selection of supportive measures and remedies, the Final Rule states that it does not mandate or scrutinize a recipient’s decision with respect to disciplinary sanctions imposed on a respondent after a respondent has been found responsible for sexual harassment.
Education Program or Activity in the United States (Section 106.44(a))
As before, Title IX applies whenever the sexual harassment occurs in the recipient’s education program or activity against a person in the United States. The amended regulations clarify that an “education program or activity” includes any location, event, or circumstance over which the recipient exercised substantial control over both the respondent and the context in which the sexual harassment occurs. Importantly, this includes all of an IHE’s education programs or activities, whether occurring on or off-campus, and any building owned or controlled by a student organization that is officially recognized by a postsecondary institution (such as a fraternity or sorority house). In addition, for sexual harassment occurring outside the bounds of Title IX jurisdiction, IHEs are permitted to address sexual harassment, including providing supportive measures or pursing discipline.
Accessible Reporting (Section 106.8)
The new regulations expand who may make a report of sexual discrimination or retaliation, to whom a report may be made, and in which manner a report may be made. The Final Rule provides that any person may report sexual discrimination, including sexual harassment, whether or not the person reporting is the person alleged to be the victim of the misconduct. The reporting person may report such discrimination or harassment in person, by mail, by telephone, or by electronic mail using the contact information for the Title IX Coordinator, and reports may be made at any time, including non-business hours.
In addition, the Final Rule expands an IHE’s obligations to ensure its educational community knows how to report potential violations to the Title IX Coordinator. The Final Rule further expands the pool of people who must be notified of the Title IX Coordinator’s name or title, office address, email address, and phone number to include applicants for admission or employment, students, employees, and unions (as well as the parents or legal guardians of elementary and secondary school students), and the Title IX Coordinator’s contact information must be posted publicly on the recipient’s website. Designating one employee as the Title IX Coordinator ensures that students and employees know that notifying the Title IX Coordinator triggers the recipient’s legal obligations to respond to sexual harassment under the regulations.
Safe Harbors Removed from Final Rule (Section 106.44(b))
The NPRM contained “safe harbor” provisions, which protected an IHE against a finding of deliberate indifference or other finding of sex discrimination so long as the IHE followed procedures consistent with the mandated grievance process set forth in the amended regulations. The safe harbor has been removed in the Final Rule. Instead, the Final Rule makes it clear that recipients are always required to follow the mandatory grievance procedures in section 106.45 in response to all formal complaints, and are always required to comply with the response obligations specified in section 106.44(a), even if a formal complaint is not filed. In addition, the requirement that a Title IX Coordinator file a formal complaint any time the recipient had notice of multiple reports against a particular respondent, and the corresponding safe harbor, has also been removed from the Final Rule.
The Final Rule retained a more limited protection for recipients based on the DOE’s disagreement with the particular outcome of a grievance process. Section 106.44(b)(2) states: “The Assistant Secretary will not deem a recipient’s determination regarding responsibility to be evidence of deliberate indifference by the recipient, or otherwise evidence of discrimination under Title IX by the recipient, solely because the Assistant Secretary would have reached a different determination based on an independent weighing of the evidence.”
The Final Rule retains the provisions allowing emergency removal of respondents if the recipient, based on an individualized safety and risk analysis, determines that the respondent represents an “immediate threat” and provides the respondent with notice and opportunity to challenge the decision. In addition, the Final Rule retains the ability of a recipient to place employee respondents on administrative leave during the pendency of the grievance process.
Grievance Process for Formal Complaints (Section 106.45(b))
The Final Rule codifies the requirements of a recipient’s grievance process in response to formal complaints before the imposition of any disciplinary sections or other actions against a respondent.8 Furthermore, the Final Rule makes it clear that “[a] recipient’s treatment of a complainant or a respondent in response to a formal complaint of sexual harassment may constitute discrimination on the basis of sex under title IX.”
The basic requirements of the grievance process include an objective evaluation of both inculpatory and exculpatory evidence and a requirement that credibility may not be based on a person’s status as a complainant, respondent, or witness. The grievance process must also ensure that the Title IX Coordinator, investigator, decision-maker, or facilitator of an informal resolution process be free of conflicts of interest or bias against a party, and that each such person receive training on the application of the Title IX policy and the grievance process, including, where appropriate, how to conduct hearings and make relevancy determinations. The grievance process must also include a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process. Furthermore, the grievance process must include “reasonably prompt time frames” for concluding the grievance process, including filing and resolving any appeal and any informal resolution process, while also providing for temporary delays or extensions of time frames for good cause. Importantly, the term “reasonably prompt time frames” is not defined in the regulations, although some guidance is provided in the commentary to the Final Rule. The grievance process must also describe the range of possible sanctions and remedies that a recipient may implement following a determination of responsibility.
In addition, the grievance process must state the applicable standard of evidence and include the applicable appeal procedures (described below). Similar to the prior guidance provided in the DOE’s September 22, 2017 Q&A on Campus Sexual Misconduct, IHEs will have an option to use the preponderance of evidence (more likely than not) standard mandated by the 2011 Dear Colleague Letter, or a clear and convincing (reasonably certain) standard, a higher standard of proof, to adjudicate a formal complaint. Each recipient must apply the same standard of evidence for all formal complaints brought by or against a student and or an employee, including faculty members.
Furthermore, the grievance process must include formal notice to both parties of the applicable process governing the complaint and detailed notice of the allegations with sufficient details to prepare a response before any initial interview, including the identity of the parties involved in the incident (if known), the conduct allegedly constituting sexual harassment, and the date and location of the alleged incident (if known). The notice must also include: (i) a statement that the respondent is presumed not responsible until a determination is made at the conclusion of the process; (ii) information regarding the parties’ right to an advisor and the right to review evidence; and (iii) notice of any provision in the recipient’s code of conduct that prohibits knowingly making false statements or submitting false information during the grievance process. If additional allegations are later included within the scope of the investigation, additional notice must be provide at that time.
The grievance process must also include a provision for mandatory dismissal of a complaint if the allegations would not constitute sexual harassment, even if proven; if the alleged conduct did not occur in the recipient’s educational program or activity; or if it did not occur in the United States. However, such a dismissal does not preclude action under other provisions of the recipient’s code of conduct. In addition, a recipient may dismiss a complaint at any time if the complainant provides written notice of their request for dismissal to the Title IX Coordinator, if the respondent is no longer enrolled or employed by the recipient, or when specific circumstances prevent the gathering of evidence sufficient to reach a determination.
In conducting an investigation, the recipient must ensure that the burden of gathering evidence sufficient to reach a determination is on the recipient, not the parties, recognizing that the recipient cannot obtain information protected by a legally recognized privilege (e.g., doctor-patient) without the party’s voluntary waiver. The recipient must also provide an equal opportunity to the parties to present witnesses and evidence; not restrict either party form discussing the allegations or from gathering evidence (i.e. no “gag orders”); provide the parties the same opportunities to have advisors present during the grievance proceeding (subject to limitations on the advisors’ participation); and provide the parties written notice of all hearings, interviews, or meetings with sufficient time to prepare.
In addition, the recipient must provide both parties an equal opportunity to review “any evidence obtained as part of the investigation that is directly related to the allegations raised in the formal complaint,” including evidence upon which the recipient does not intend to rely, and each party must be provided at least 10 days to submit a written response to the evidence prior to the conclusion of the investigation. The right to access the full evidentiary record also represents a significant change for many IHEs, and it may change the way in which investigators gather information during investigations. For example, investigators will need to be thoughtful in crafting requests for documents from administrative employees, as such documents may contain attorney-client privileged communications that could be subject to access by parties under the amended regulations.
Finally, the recipient must create an investigation report that fairly summaries the relevant evidence and provide the report to the parties at least 10 days prior to a hearing for their review and written response.
Live Hearings, Cross-Examination and Advisors (Section 106.145(b)(6))9
For IHEs, the grievance process must provide for live hearings before the decision-makers and permit both parties’ advisors to ask the other party and witnesses relevant questions, including those challenging credibility, with any exclusions of questions or evidence based on relevance as determined by the decision-makers. The cross examination must be conducted directly, orally, and in real time by the party’s advisor but never by a party. Importantly, the Final Rule provides rape shield protections for complainants by making it clear that questions and evidence about a complainant’s sexual disposition or prior sexual history are to be considered irrelevant, with two limited exceptions relating to proving someone other than the respondent committed the conduct in question or to prove consent by showing complainant’s prior history with respondent.
At the request of either party, the hearing may be conducted in separate rooms with technology that connects the decision-makers to the parties and witnesses. At the recipient’s discretion, hearings may be conducted virtually, with the parties, witnesses, or other participants appearing using technology to allow participants simultaneously to see and hear each other. In addition, recipients must create an audio or visual recording or a transcript of the hearing and make it available to the parties for inspection and review.
If a party does not have an advisor present at the hearing, the IHE must provide one free of charge to the party to conduct cross-examination on behalf of that party. The advisor provided by the IHE may be, but is not required to be, an attorney, as no training or qualification is necessary for a person to serve as an IHE-provided advisor.
If a party or witness does not submit to cross-examination at the hearing, the decision-makers may not rely on any statement of that party or witness in reaching a decision of responsibility, although the decision-maker cannot draw an inference about responsibility based solely on a party or witness’s absence or refusal to answer questions.
After an investigation and hearing is concluded, the decision-maker (who cannot be the same person as the Title IX Coordinator or the investigator) 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. This determination must be sent simultaneously to the parties along with information about how to file an appeal. IHEs should keep in mind that disclosure of certain information in a student’s education record, which do not directly relate to the investigation, disciplinary sanctions, and remedies, may result in a violation of Family Educational Rights and Privacy Act (FERPA).
Appeals (Section 106.45(b)(8))
The Final Rule adopts the 2011 Dear Colleague Letter’s recommendation that recipients should provide an appeal process for both parties. The Final Rule states that a recipient must offer both parties an appeal from a determination regarding responsibility, and from a recipient’s dismissal of a formal complaint or any specific allegations in the formal complaint. The appeal process must offer an appeal based on the following bases: procedural irregularity that affected the outcome of the matter; new evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made that could affect the outcome of the matter; and/or the Title IX Coordinator, investigator, or decision-maker had a conflict of interest or bias that affected the outcome of the matter. The appeal process must be equitable to both parties, including by offering both parties any additional bases for an appeal; providing notice to both parties when the appeal is filed; ensuring that the decision-maker for the appeal is not the same person as the initial decision-maker on the formal complaint, the investigator, or the Title IX Coordinator; providing both parties a chance to submit a written statement; and issuing a written decision that is provided to both parties.
Informal Resolution (Section 106.45(b)(9))
The Final Rule allows IHEs to offer informal resolution options, such as mediation, restorative justice, or other options, but IHEs cannot mandate that parties attempt to resolve the complaint through informal means or condition enrollment or employment on the waiver of the right to investigation and adjudication of a formal complaint. Such informal resolution options may only be initiated after a formal complaint has been filed by a complainant. However, before informal resolution can be initiated, both parties must be provided written notice of the allegations and the requirements of the informal resolution process and give their voluntary, informed consent in writing, which can be withdrawn at any time in favor of a formal grievance process. The Final Rule further requires that any person who is selected to facilitate informal resolution of a Title IX complaint must be well-trained.
It is important to note that informal resolution methods may not be used to resolve allegations that an employee sexually harassed a student. In such instances, the IHE’s established formal grievance procedures must be followed.
Retaliation (Section 106.71)
Retaliation is expressly prohibited by the Final Rule. Individuals and recipients may not intimidate, threaten, coerce, or discriminate against an individual for the purpose of interfering with their Title IX rights or because the individual filed a complaint, testified, participated, or refused to participate in a Title IX proceeding. Importantly, charging an individual with code of conduct violations for the purpose of interfering with any right or privilege secured by Title IX constitutes impermissible retaliation. Thus, if an individual is charged with conduct violations that do not involve sexual harassment but arise out of the same set of facts or circumstances as a report or formal complaint of sexual harassment, a claim of retaliation may be implicated if those charges were made with the purpose of interfering with the student’s Title IX rights.
However, the exercise of one’s First Amendment rights does not constitute retaliation. Furthermore, an individual who makes a materially false statement in bad faith in the course of a grievance proceeding may be charged with violating applicable provisions of the recipient’s code of conduct. A determination of responsibility for the underlying allegations alone is insufficient to conclude that the party made a bad-faith, materially false statement.
In addition, recipients have a responsibility to keep the identity of complainants, respondents, and witnesses confidential except as permitted by FERPA, as required by law, or as necessary to carry out the Title IX proceeding. Complaints alleging retaliation may be filed according to an institution’s existing grievance procedures.
Recordkeeping (Section 106.45(b)(10))
The Final Rule requires recipients to maintain records relating to sexual harassment complaints for a period of seven years. This record retention requirement includes records relating to investigations, hearings (including the required recording or transcript), disciplinary sanctions, remedies, appeals, and informal resolutions. In addition, the recipient must maintain all materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, and must make such training materials publicly available on its website (or available in response to a request from the public if it does not maintain a website).
For many IHEs, the new requirements set forth in the Final Rule represent a fundamental shift in the way in which complaints of sexual harassment are handled. Furthermore, the current COVID-19 emergency and related budgetary considerations have significantly increased the burdens on legal, compliance, and HR departments in IHEs across the country. The new requirements in the Final Rule will only increase that burden in the months leading up to the August 14, 2020 effective date. Accordingly, we recommend that IHEs begin the process of adopting the changes required by the regulations as soon as possible to ensure that they have the necessary time and resources to fully understand the scope and impact of the amended regulations on their particular institution, to adopt the necessary changes to policies and procedures, and to implement changes to training and other programs required to ensure compliance.