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 OCR’s 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 educational institutions from sexual harassment and discrimination, an institution should comply with the state requirements that apply and the new regulations. (34 C.F.R. § 106.6 , subd. (a).) However, if the institution’s concurrent compliance with both state law and the new Title IX regulations is not possible, the regulations preempt the conflicting state law.  (34 C.F.R. § 106.6 , subd. (a).) Thus, an institution may have to process complaints and misconduct hearings that do not come within Title IX, such as race or disability harassment, theft, cheating, and other misconduct on campus, under parallel procedures covered by other laws, or they may follow the procedures under the Title IX regulations for those matters as well.  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 an institution’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).) Colleges and schools may continue to address misconduct that does not rise to these levels via employee and student codes of conduct and policies.

Notice to the Institution

The regulations deem a K-12 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 school employees about Title IX protections and the new regulations is crucial.

The regulations do not require all college employees to report sexual harassment to the institution’s Title IX Coordinator; colleges have discretion to determine which employees will be required to make reports. Colleges can also designate certain employees on campus as confidential resources.  Under the regulations, colleges have actual knowledge and a duty to respond to sexual harassment once the Title IX Coordinator, or an official with authority to institute corrective measures, has notice of sexual harassment. (34 C.F.R. §106.30, subd. (a).)

Educational Program or Activity

The regulations require that an institution respond when sexual harassment occurs in an institution’s education program or activity, against a person in the United States.  Education program or activity includes locations, events, or circumstances over which the institution exercised substantial control over both the respondent and the context in which the sexual harassment occurred.  This includes any building owned or controlled by a college recognized student organization (such as a fraternity or sorority house). (34 C.F.R. § 106.44, subd. (a).)  The regulations specifically exclude sexual harassment that occurs outside of the United States, even if the misconduct occurred during an institution-sponsored event or by an employee of the institution.  However, colleges and schools can address such misconduct under their 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.

The Complainant and Respondent

Third parties may report sexual harassment, but the regulations define the individual alleged to be the victim of sexual harassment as the complainant, and the individual alleged to have engaged in sexual harassment as the respondent. (34 C.F.R. § 106.30, subd. (a).)

Obligation to Respond

The institution 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, institutions 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. Colleges and 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 institution 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 institution investigate the allegation of sexual harassment);
• Follow a grievance process that complies with the regulations;
• Not restrict rights protected under the U.S. Constitution, including the First Amendment, Fifth Amendment, and Fourteenth Amendment, when complying with Title IX;
• 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 institution’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 an institution’s grievance process must:

• Provide remedies any time the institution 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; (California’s affirmative consent statute, Education Code section 67386, requires colleges receiving state funding to use a preponderance of the evidence standard).
• Describe the institution’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 an institution 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 institution investigate the allegations against a respondent. (34 C.F.R. §  106.30.) As discussed above, a complaint under the regulations is defined as the individual who is the alleged victim of sexual harassment. The complainant must be an individual participating in or attempting to participate in the institution’s education program or activity.  Thus, the regulations appear to bar students who have graduated from the institution from filing a formal complaint even if the respondent is still enrolled or employed at the institution.  In those situations, the institution should determine if it is require to process the complaint or report of sexual harassment under California law, or its own code of conduct.

The regulations prescribe the manner in which the institution must investigate Title IX complaints.  (34 C.F.R. § 106.45, subd. (b)(5).) The regulations prohibit institutions 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 an institution’s education program or activity against a person in the United States, the regulations require that the institution dismiss the allegation.  Institutions may address the dismissed behavior under their policies or code of conduct.  (34 C.F.R. § 106.45, subd. (b)(3).)

Hearings

The regulations require post-secondary institutions to conduct a “live hearing with cross-examination,” but hearings are optional for K-12 schools.

A postsecondary institution’s grievance process must provide for an in-person or virtual live hearing at which:

• 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 institutions, regardless of whether the institution provides a hearing, the institution must provide the investigative report to the parties before reaching a determination regarding responsibility.  Additionally, the institution 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. § 106.45, subd. (b)(7).)

Appeals

The regulations state an institution must offer both parties an appeal from a determination regarding responsibility and from an institution’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).) An institution may provide other grounds for an appeal so long as they apply to both parties.

Informal Resolution

The regulations permit an institution to offer and facilitate informal resolution options, such as mediation or restorative justice, if both parties give voluntary, informed, written consent.  The institution may not provide the informal resolution process when the allegations involve employee sexual harassment of a student.  The institution cannot offer the informal resolution process as a condition of enrollment or employment or waiver of the right to a formal investigation.  Additionally, the institution 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 individuals who participate in the complaint, investigation and hearing process from retaliation. The regulations protect individuals from intimidation, threats, coercion, or discrimination.  The regulations also prohibit an institution from taking action against anyone for refusing to participate in any 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 educational institutions from discriminating based on gender (sex), gender expression, and gender identity.  (Ed. Code, § 220.)  There are exceptions for religious institutions to the extent compliance with the law violates the tenets of their religion.

Under California law, colleges must also adopt comprehensive, victim-centered policies and disciplinary procedures concerning sexual assault, domestic violence, dating violence, and stalking. (Ed. Code, § 67386.)  Additionally, California requires colleges to adopt an affirmative consent standard as part of their student disciplinary process for sexual misconduct.  Affirmative consent is a conscious and voluntary agreement to engage in sexual activity. (Ed. Code, § 67386.)

With regard to employees, schools and colleges 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.

Colleges must report to local law enforcement violent crimes, including hate crimes and sexual assaults, whether committed on or off campus.  (Ed. Code §§ 67380, 67383.)  California law also requires that colleges enter into written agreements with local law enforcement agencies that clarify operational responsibilities for investigations of violent crimes, sexual assaults, and hate crimes occurring on each campus. (Ed. Code §§ 67381.)

COMPLYING WITH THE NEW REGULATIONS

An educational institution’s obligations to address sex- and gender-based harassment and discrimination stem from a variety of sources under federal and state law.  Education institutions should review their policies and procedures to ensure they comply with the new Title IX regulations and other existing legal obligations under federal and state law.

If your institution 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