Educational institutions (“recipient” or “recipient institutions”) have been waiting for the Department of Education to issue formal Title IX regulations after it issued interim guidance in September 2017.  This interim guidance rescinded previous Obama-era guidance that called for strict enforcement of Title IX and indicated that new formal guidance would be forthcoming.  These new proposed regulations were issued by the Department of Education on November 16, 2018 and, if enacted, will require significant changes to the Title IX policies and procedures of educational institutions. 

Several significant changes proposed in the new regulations include the following:

• “Sexual Harassment” and “Actual Knowledge” – The regulations propose narrowing the definition of sexual harassment to “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”  Additionally, a recipient institution can only be found “deliberately indifferent” if it had actual knowledge of the sexual harassment.  The proposed regulations define actual knowledge as “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.”  Notably, this definition excludes most professors, administrators, and staff.

• Evidentiary Standard – Unlike the Obama-era guidance, the proposed regulations allow recipients to choose whether to use the “preponderance of the evidence” or “clear and convincing” standard when making determinations regarding responsibility in Title IX proceedings.  However, the “preponderance” standard can only be used if that same standard is also used for conduct code violations, not involving sexual harassment, that carry the same maximum disciplinary sanction.

• “Education Program or Activity” – The proposed regulations indicate a recipient institution is only responsible for responding to conduct that occurs within its “education program or activity,” suggesting allegations of sexual harassment that occur off campus and outside of an educational program or activity would be outside Title IX’s purview.

• Informal Resolution – Previous guidance stated mediation was not appropriate in cases involving alleged sexual assault.  The proposed regulations indicate recipient institutions may opt for an informal resolution at any time, provided that both parties agree to it.

• Evidence – The proposed regulations require recipients to provide each party with an equal opportunity to inspect and review any evidence directly relating to the allegations obtained as part of the investigation, including evidence upon which the recipient institution does not intend to rely in reaching a determination regarding responsibility.

• Live Hearing – The proposed regulations require live fact-finding hearings as part of the Title IX grievance procedure for institutions of higher education.  This would eliminate the use of the investigator model currently used by many colleges and universities.

• Cross Examination – Under the proposed regulations, institutions of higher education must permit cross examination of any party or witness by the opposing party’s advisor, not by the party himself or herself.  If a party or witness does not submit to cross examination, the decision-maker may not rely on any statement of the party or witness in reaching a determination regarding responsibility.

The public has 60 days after the proposed regulations are published in the Federal Register to submit comments before any final regulations go into effect. The final regulations, however, will likely be substantially similar to the proposed regulations and educational institutions would be wise to review their Title IX policies and practices for compliance.