On Wednesday, May 6, 2020 the Department of Education released their 2033 page final rule on Title IX regulations. These regulations put into law much of the “guidance” from the department that very few campuses had embraced and survivors and advocates had broadly denounced.
The summary of notable changes here is not legal advice but a compilation based on the Department’s summary of major provisions.
- Sex-based misconduct under Title IX includes any of the following:
1. Conditioning an educational benefit (quid pro quo),
2. Sexual harassment that is “unwelcome conduct” that is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education.” The key word here is “and” it must be all three rather than any one of those three to qualify as sexual harassment. This is a narrower definition than was previously in place.
3. Sexual assault, dating violence, domestic violence, or stalking as defined by Clery Act. This was expanded to include dating violence, domestic violence, and stalking.
- College’s must hold live (video is acceptable) hearings. They may not use the “single investigator model” where one person investigates and makes a decision based on the evidence about finding and sanction without a hearing. There must be three separate officials involved in a Title IX case.
1. A Title IX official who receives the complaint
2. An investigator who gathers information from the parties and witnesses and,
3. A decider who determines responsibility and sanctions. - There must be a 10-day notice including evidence provided to the parties and advisors. The parties may not be prohibited from speaking about the incident.
- There is no longer a specific timeframe that complaints must be resolved within. Instead, college’s are required to be “reasonably prompt.”
- College must allow cross examination by an advisor (not the parties directly) of the parties and witnesses. The advisor may be an attorney.
- Colleges do not have to investigate off-campus (including study away) sexual misconduct unless it occurs in college-owned housing or an educational activity (recognized fraternities and sororities count as educational activities). It appears that college’s may still hold students accountable through their misconduct policies, but it would not be a Title IX violation. This appears to mean that one student sexually assaulting another student at a third-party owned apartment building across the street from campus would not be considered a Title IX violation, but the campus could apply conduct policies and processes.
- Any sexual harassment or assault that occurs outside the United States is no longer a Title IX violation. Similar to off-campus sexual misconduct, it appears that campuses may apply their policies but it would not be a Title IX violation.
- Multiple reports of sexual harassment against a single individual no longer require an investigation.
- College’s have the option to use “clear and convincing” as their decision standard but also may continue with a “preponderance of evidence” standard.
- College do not have to designate all employees as “mandatory reporters,” however, they may maintain their current policies as well.
- All personnel involved in Title IX processes must be trained on the new guidelines, definitions, and requirements.
- New regulations go into effect on August 14, 2020
Here are additional resources.
