Revised Special Bulletin: U.S. Department of Education Releases Final Title IX Rule

On Wednesday, May 6, 2020, the Office for Civil Rights (OCR) of the U.S. Department of Education released new Title IX regulations.  They take effect August 14, 2020.  The new regulations  mandate how K-12 and postsecondary institutions that receive federal financial assistance must define, investigate, and adjudicate claims of sexual misconduct.  The release of these new regulations follows consideration of approximately 124,000 comments in response to its initially proposed regulations.

MAJOR CHANGES IN TITLE IX IMPLEMENTATION

Preemption

To the extent that state law already provides statutes or regulations that protect individuals at schools from sexual harassment and discrimination, a school should comply with both the state requirements and the new regulations. (34 C.F.R. § 106.6 , subd. (a).) However, if there is a conflict, the regulations preempt state law.  (34 C.F.R. § 106.6 , subd. (a).) This preemption will also affect collective bargaining agreements with faculty and staff that conflict with the Title IX regulations.

Definition of Sexual Harassment

The new regulations define sexual harassment as “unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal educational access.”  The definition also includes any instance of quid pro quo harassment by a school’s employee and 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).  (34 C.F.R. § 106.30, subd. (a).)  Schools may continue to address misconduct that does not rise to these levels by setting higher standards through employee and student codes of conduct and policies.

Notice to the School

The regulations deem a school to have actual notice and a duty to respond to an incident or allegation of sex harassment whenever any employee at the school has notice.  As a result, training of these new standards is crucial.

Educational Program or Activity

The regulations require that a school respond when sexual harassment occurs in a program or activity, against a person in the United States.  Education program or activity includes locations, events, or circumstances over which the school exercised substantial control.  The regulations specifically exclude sexual harassment that occurs outside of the United States, even if the misconduct occurred during a school-sponsored event or by an employee of the school.  Of course, the school may still address misconduct under its own rules and code of conduct.  While there may not be a Title IX violation for conduct occurring outside of the United States, there may still be liability based on other statutes and standards.

Obligation to Respond

A school now has a legal obligation to “respond promptly to Title IX sexual harassment in a manner that is not deliberately indifferent, which means a response that is not clearly unreasonable in light of the known circumstances.” (34 C.F.R. § 106.44 subd. (a).)

Specifically, schools must:

• Offer supportive measures to the complainant and respondent..  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. Schools cannot remove a respondent student without an evidentiary hearing except in emergency situations to protect from an immediate threat to the physical health or safety of an individual.  The school may also place a non-student employee on administrative leave pending the grievance process.
• Promptly contact the complainant to discuss supportive measures and explain to the complainant the process for filing a formal complaint (a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the school investigate the allegation of sexual harassment);
• Follow a grievance process that complies with the regulations;
• Investigate sexual harassment allegations in any formal complaint; and
• Dismiss (for the purposes of Title IX) any allegations in a formal complaint that do not meet the definition of sexual harassment discussed above or that did not occur in the school’s education program or activity against a person in the United States.

(34 C.F.R. § 106.44, subd. (a) and (b).)

Grievance Process

The regulations state the required components of a school’s grievance process must:

• Provide remedies any time the school finds the respondent responsible for a Title IX violation;
• Presume the respondent is not responsible for a Title IX violation until the conclusion of the grievance process and not impose disciplinary sanctions without following a grievance process;
• Require an objective evaluation of all relevant evidence and avoid credibility determinations based on a person’s status as a complainant, respondent, or witness;
• Require Title IX personnel (Title IX Coordinators, investigators, decision-makers, people who facilitate any informal resolution process) to receive training and be free from conflicts of interest or bias for or against complainants or respondents;
• Post materials used to train Title IX personnel on their websites;
• Include reasonably prompt time frames for conclusion of the grievance process;
• Describe the range of possible remedies and disciplinary sanctions;
• Identify the evidentiary standard which can be either the preponderance of the evidence or the clear and convincing evidence standard; Describe the school’s appeal procedures;
• Not use information protected under a legally recognized privilege, unless the person holding the privilege waives it.

(34 C.F.R. § 106.45, subd. (b)(1).)

Formal Complaints and Investigations

The regulations require that a school investigate allegations only if it receives a formal complaint. (34 C.F.R. §  106.44(b)(1).)  A formal complaint is defined as a written document filed and signed by a complainant or Title IX Coordinator alleging sexual harassment, as defined in the regulations, and requesting that the school investigate the allegations against a respondent.  (34 C.F.R. §  106.30.)  (Other federal and state laws, however, may require investigating even without a formal complaint.)  The complainant must be an individual participating in or attempting to participate in the school’s education program or activity.  Thus, the regulations appear to bar students who have graduated from the school from filing a formal complaint even if the respondent is still enrolled or employed at the school, though school policies may differ.

The regulations prescribe the manner in which the school must investigate Title IX complaints.  (34 C.F.R. § 106.45, subd. (b)(5).)  The regulations prohibit schools from restricting the ability of parties to discuss the allegations or gather evidence (e.g., no “gag orders”) (34 C.F.R. §106.45, subd. (b)(5)(iii).) Both parties must receive an opportunity to review either an electronic or hard copy of the evidence obtained as part of the investigation that is directly related to the allegations raised in the complaint prior to the conclusion of investigation.  (34 C.F.R. § 106.45, subd. (b)(5)(vi).)  Additionally, both parties have a right to respond to the evidence at least ten (10) days after receiving it.  (34 C.F.R. § 106.45, subd. (b)(5)(vi).)  Once the investigator completes the report, it must be provided to the parties and their advisor for their review and response.  (34 C.F.R. § 106.45, subd. (b)(5)(vii).)

If the investigation reveals that an allegation does not meet the definition of sexual harassment under Title IX or did not occur in a school’s education program or activity against a person in the United States, the regulations require that the school dismiss the allegation.  Schools may address the dismissed behavior under their code of conduct or policies.  (34 C.F.R. § 106.45, subd. (b)(3).)

Religious Exemption

A religious school is exempt from Title IX to the extent that application of the regulations is inconsistent with its religious tenets. The final regulations do not require that religious schools submit a written statement to the Assistant Secretary for Civil Rights to qualify for the Title IX religious exemption.  (34 C.F.R. § 106.12, subd. (b).) If OCR notifies a school that it is under investigation for a Title IX violation, the school can assert then that it is exempt by submitting to the Assistant Secretary a written statement from the highest-ranking official of the school, identifying the conflict with a specific tenet of the religious organization.

Hearings

Hearings are optional for K-12 schools.  If a school adopts a hearing process, it may want to consider the requirements that apply to postsecondary institutions:

• Each party’s advisor is allowed to ask the other party and any witnesses all relevant questions and follow-up questions;
• The advisor is able to cross-examine witnesses directly, orally, and in real time;
• The party is not limited in the choice or presence of advisor throughout the grievance proceedings;
• Before a complainant, respondent, or witness answers a question, the decision-maker must first determine whether the question is relevant and explain to the party’s advisor asking cross-examination questions any decision to exclude a question as not relevant;
• At the request of either party, the institution must provide the hearing to occur with the parties located in separate rooms with technology enabling the parties to see and hear each other;
• If a party does not have an advisor present at the live hearing, the institution must provide, at the institution’s sole expense, an advisor of the institution’s choice who may be, but is not required to be, an attorney to conduct cross-examination on behalf of that party; and
• The institution must create an audio or audiovisual recording, or transcript, of the live hearing.

(34 C.F.R. § 106.45, subd. (b)(6)(i).)

For K-12 schools, regardless of whether they allow for a hearing, the school must provide the investigative report to the parties before reaching a determination regarding responsibility.  Additionally, the school must allow each party the opportunity to submit written questions for any party or witness, exchange the answers, and allow for follow-up questions from each party.  (34 C.F.R. § 106.45, subd. (b)(6)(ii).)

Ultimately, 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 conclusion as to each allegation, any disciplinary sanctions imposed on the respondent, and whether remedies will be provided to the complainant.  (34 C.F.R. Part 106.45, subd. (b)(7).)

Appeals

The regulations state a school must offer both parties an appeal from a determination regarding responsibility and from a school’s dismissal of a formal complaint or any allegations on the following bases:

• A procedural irregularity that affected the outcome of the matter;
• Newly discovered evidence that could affect the outcome of the matter; or
• A conflict of interest or bias by Title IX personnel that affected the outcome of the matter.

(34 C.F.R. § 106.45, subd. (b)(8).)  A school may provide other grounds for an appeal so long as they apply to both parties.

Informal Resolution

The regulations permit a school to offer and facilitate informal resolution options, such as mediation or restorative justice, if both parties give voluntary, informed, written consent.  The school may not provide the informal resolution process when the allegations involve employee sexual harassment of a student.  The school cannot offer the informal resolution process as a condition of enrollment or employment or waiver of the right to a formal investigation.  Additionally, the school can only provide an informal resolution process after receiving a formal complaint.  (34 C.F.R. § 106.45, subd. (b)(9).)

Protections against Retaliation

The regulations protect all who participate in the complaint, investigation, and hearing process from retaliation such as intimidation, threats, coercion, or discrimination.  The regulations also prohibit a school from taking action against anyone for refusing to participate in a Title IX investigation, proceeding, or hearing. (34 C.F.R. § 106.71, subd. (a).) Thus, OCR’s anti-retaliation regulations now prevent institutions from directing employees to participate in investigations, hearings and other Title IX proceedings, under the threat of discipline for insubordination for failing to do so.

OBLIGATIONS UNDER CALIFORNIA LAW

California state law prohibits schools that accept state funding from discriminating based on gender (sex), gender expression, and gender identity.  (Ed. Code, § 220.)  There are exceptions for religious schools to the extent compliance with the law violates the tenets of their religion.

With regard to employees, schools (other than non-profit religious corporations) must comply with the Fair Employment and Housing Act’s duty to prohibit and prevent harassment and discrimination, including by providing training to employees and conducting investigations once they are on notice of sexual harassment and discrimination.

COMPLYING WITH THE NEW REGULATIONS

A school’s obligation to address sex- and gender-based harassment and discrimination stem from a variety of sources under federal and state law.  Even if a school does not accept federal or state funding, the new requirements may raise issues of best practice that should be carefully considered.  Schools should therefore review their policies and procedures in light of the new Title IX regulations.

If your school needs assistance, please contact one of our five offices statewide.

The regulations, resource documents, and webinar published by the U.S. Department of Education are found on OCR’s website, available at https://www2.ed.gov/about/offices/list/ocr/newsroom.html