On May 6, 2020, the U.S. Department of Education released final regulations governing how institutions that receive federal financial assistance covered by Title IX of the Education Amendments of 1972 (Title IX) must respond to allegations of sexual harassment. Notably, in the decades during which the department has been responsible for overseeing Title IX compliance, this is the first time it has issued regulations addressing sexual harassment as a form of prohibited sex discrimination under Title IX.

The regulations, which were published on May 19, 2020, in the Federal Register, become effective on August 14, 2020, and will have a direct impact on approximately 3,200 colleges and universities that receive Title IX financial assistance, as well as entities that partner with those institutions, such as hospitals, academic medical centers, and clinical affiliates. The regulations spell out a recipient’s requirements for providing procedural due process to both complainants and respondents. However, despite the department’s efforts to provide clarity, there have already been numerous critiques of and legal challenges to the regulations.

The department has addressed other aspects of sexual harassment and discrimination through a series of guidance documents since the 1990s, including:

• Sexual Harassment Guidance 1997;

• Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (January 19, 2001);

• “Dear Colleague” letter on harassment and bullying (October 26, 2010);

• “Dear Colleague” letter on Title IX retaliation (April 24, 2013); and

• Interim Q&A on Campus Sexual Misconduct (September 2017).

On September 22, 2017, the department withdrew guidance issued in 2011 and 2014.

Background

The regulations impose legally binding obligations on recipients by requiring them to address sexual harassment as a form of sex discrimination in education programs or activities, and are intended to “better align the Department’s Title IX regulations with the text and purpose of Title IX, the U.S. Constitution, Supreme Court [of the United States] precedent and other case law, and to address the practical challenges facing students, employees, and recipients with respect to sexual harassment allegations in education programs and activities.”

The department’s stated objective in issuing the regulations is to create a consistent, predictable Title IX grievance process among institutions of all sizes, whether public or private. Student respondents are increasingly challenging the outcomes of investigations and hearings and alleging that they have been subjected to disproportionate or unfair disciplinary sanctions as a result of procedural failings at colleges and universities. One commonly asserted theory of recovery is “erroneous outcome,” in which a respondent asserts that the decision-maker was biased and/or reached a decision that was not supported by the facts. (To address this, the regulations provide that a respondent can be unjustifiably separated from his or her education on the basis of sex, in violation of Title IX, if the recipient does not investigate and adjudicate using fair procedures before imposing discipline.) However, prior to the new regulations, allegations of due process violations during Title IX proceedings could only be maintained against public institutions, because only public institutions act under color of state law.

In particular, the regulations build on and modify the framework set out in Supreme Court decisions, Gebser v. Lago Vista Independent School District (1998) and Davis v. Monroe County Board of Education (1999), which together establish a three-part framework for analyzing when a school’s response to sexual harassment indicates that the school itself engaged in intentional discrimination (the “Gebser/Davis framework”). Specifically, the Gebser/Davis framework considers: (1) the definition of actionable sexual harassment; (2) the school’s “actual knowledge” of such harassment; and (3) the school’s “deliberate indifference” to the report of harassment.

What Constitutes “Sexual Harassment” Under the Regulations?

According to the department, the final rule defines sexual harassment broadly to include any of the three recognized types of “misconduct on the basis of sex,” all of which jeopardize the equal access to education that Title IX is designed to protect. Under the regulations, the following “misconduct on the basis of sex” constitutes sexual harassment when it occurs in the United States and in the institution’s education program or activity (including off-campus events and activities where the recipient exercises substantial control over both the respondent and the context in which the harassment occurs):

• “[A]n employee of the recipient conditioning educational aid or an educational benefit or service on an individual’s participation in unwelcome sexual conduct” (i.e., quid pro quo harassment)

• Unwelcome conduct of a sexual nature or on the basis of sex that a reasonable person would determine is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s educational program or activity”

• Sexual assault, the definition of which the regulations have broadened beyond a single instance of sexual assault to include “dating violence,” “domestic violence,” and “stalking on the basis of sex,” as defined in the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act of 1990 and the Violence Against Women Reauthorization Act of 2013

The department emphasized that it intentionally applied a narrower definition of actionable sexual harassment than that used when analyzing claims under Title VII of the Civil Rights Act of 1964, in order to respect the unique nature and purpose of educational environments (which differ in significant ways from workplaces), and to avoid infringing on First Amendment rights of involved individuals. The department further stated that determining whether “conduct is on the basis of sex” does not require an inquiry into the subjective motive of the respondent. Rather, where the conduct is sexual in nature, or where conduct references one sex or another, such facts are sufficient to determine that the conduct is “on the basis of sex.” The preamble to the regulations also clarifies that a recipient may continue to address harassing conduct that does not meet the department’s definition of actionable sexual harassment under its non-Title IX policies or codes of conduct.

When Is a Recipient Liable for Sexual Harassment?

A recipient with “actual knowledge” of sexual harassment allegations engages in intentional discrimination if it responds in a “deliberately indifferent” manner to the reported allegations. A recipient is not required to respond if it merely “should have known” about sexual harassment; rather, its obligation to respond is triggered only after the recipient has “actual knowledge” of the alleged conduct. “Actual knowledge” means notice to the recipient’s Title IX coordinator or “any official of the recipient who has authority to institute corrective measures on behalf of the recipient” (known as the “official with authority”).

Notice occurs whenever a Title IX coordinator or official with authority: (1) witnesses sexual harassment; (2) hears about sexual harassment or receives sexual harassment allegations from a complainant or a third party (e.g., a complainant’s parent, friend, or peer); (3) receives a written or verbal complaint about sexual harassment or sexual harassment allegations; or (4) receives notice by any other means. The person who reports does not need to be the complainant; rather, a report may be made by any person.

A recipient is not liable in instances in which it took all steps required under the regulations, or took other actions that were not clearly unreasonable in light of the known circumstances, though the alleged harasser nevertheless is accused of subsequent harassment allegations.

What Triggers a Recipient’s Response?

Once a recipient is charged with “actual knowledge” of sexual harassment in its education program or activity, it must then evaluate its response. Liability arises where a recipient acts with “deliberate indifference,” meaning that it responds to sexual harassment allegations in a manner that is “clearly unreasonable in light of the known circumstances.”

A recipient’s response must include the following mandatory, proactive, and interactive process: (1) it “must be prompt”; (2) it “must consist of offering supportive measures to a complainant”; and (3) it “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.” These regulations clarify that a Title IX coordinator should initiate a grievance process against the complainant’s wishes only if doing so would not be clearly unreasonable in light of the known circumstances.

A recipient must treat complainants and respondents equitably. Specifically, the recipient must offer supportive measures for a complainant and must follow a grievance process that complies with the regulations before imposing disciplinary sanctions. If a respondent is found to be responsible for sexual harassment, the recipient must effectively implement remedies for the complainant designed to restore or preserve the complainant’s equal education access, and the recipient may impose disciplinary sanctions on the respondent.

What Are “Supportive Measures” and When Must They Be Offered?

The specific supportive measures offered to a complainant are up to the recipient institution, but should be customized to each individual complainant’s needs. As the department stated in its regulatory preamble, recipients “are best positioned to make decisions about which supportive measures and remedies meet each complainant’s need to restore or preserve the right to equal access to education, and which disciplinary sanctions are appropriate against a respondent who is found responsible for sexual harassment.” The regulations further emphasize that supportive measures cannot be punitive or disciplinary against any party and cannot unreasonably burden the respondent or alter or affect the respondent’s presumption of innocence throughout the investigation and grievance process.

The department offered a nonexhaustive list of examples of supportive measures that may include moving a complainant or respondent’s seat in a class; alternate housing arrangements; modified work schedules; a no-contact order; course-related adjustments (such as the opportunity to retake classes or exams); revised class schedules; deadline extensions; counseling; leaves of absence; and increased campus escort services and other security services.

Elements of the Grievance Process

The Investigation

Upon receipt of a formal complaint, a trained investigator must conduct an investigation consistent with the recipient’s code of conduct and/or Title IX procedures and draft an investigation report summarizing the evidence. Prior to finalizing the report, the investigator must send a preliminary report to the parties and their advisors, if any. The parties must be allowed at least 10 days to respond in writing to the evidence, and the investigator must consider the written response prior to completing the report.

At the investigation’s conclusion, the investigator must either dismiss the allegations or determine if there is sufficient evidence to conclude that a Title IX violation occurred. The regulations set forth circumstances under which an institution must dismiss a formal complaint, and circumstances under which it may dismiss a complaint. An institution must dismiss a complaint when the investigator concludes that: (1) sexual harassment did not occur against a person in the United States; (2) the conduct would not constitute sexual harassment, even if proven; or (3) the sexual harassment did not occur in a recipient’s education program or activity. On the other hand, an institution may dismiss a complaint if the complainant requests it in writing; if the respondent is no longer enrolled in or employed by the institution; or if specific circumstances prevent the investigator from gathering sufficient evidence to reach a determination. If a complaint or allegation is dismissed, the parties must simultaneously receive a written explanation for the dismissal and notice of the ability to challenge the dismissal on appeal.

Pre-hearing

Once a postsecondary institution completes an investigation and determines that sexual harassment may have occurred, it should initiate the grievance process described in the regulations, which must include a live hearing. Although institutions may instead resolve complaints through an informal process with the consent of both parties, which may replace the investigation or subsequent process, informal resolutions are not available when a student-complainant alleges sexual harassment by an employee-respondent.

The Title IX coordinator initiates this step of the formal grievance procedures by sending a written notice of the allegations to both parties and informing them of the right to choose an advisor to attend the hearing. If a party does not have an advisor, the institution must provide one. Advisors may be attorneys, but the regulations permit non-attorneys to serve as advisors as well. The respondent also must be apprised of the complainant’s identity; he or she cannot remain anonymous. As the department explained, “Fundamental fairness and due process principles require that a respondent knows the details of the allegations made against the respondent, to the extent the details are known, to provide adequate opportunity for the respondent to respond.” The institution also should apprise the parties of their rights and obligations. Notably, the institution may not restrict either party’s ability to discuss the investigation or gather and present evidence.

At least 10 days before the hearing, the Title IX coordinator’s office must send the final investigation report to the parties containing a “fair” summary of the evidence so that both parties may prepare to respond at the hearing.

Hearing

For postsecondary institutions, hearings must be live and conducted in real time. Upon the request of either party, the hearing may be conducted by videoconference with the parties in separate rooms. However, at all times, all participants, including the parties, advisors, witnesses, and decision-maker, must be able to see and hear each other.

A decision-maker who is not the Title IX coordinator or investigator must preside over the hearing. The decision-maker must have extensive training in Title IX procedures as well as all applicable evidentiary requirements, standards of proof, and relevant state and local laws, and this training must be made available to the public. The decision-maker is tasked with reaching a determination regarding responsibility by applying the standard of evidence the institution has designated for use in all formal complaints of sexual harassment. Institutions may choose either a “clear and convincing evidence” standard or a “preponderance of the evidence” standard, but must apply the same standard to all sexual harassment complaints against students and employees. The decision-maker must evaluate all relevant evidence under this standard without making credibility determinations based on a party’s status as a complainant or respondent.

The decision-maker may permit the parties or advisors to make opening or closing statements. Advisors must conduct cross-examination of the parties and any additional witnesses. Specifically, “cross-examination must occur ‘directly, orally, and in real-time’ by the party’s advisor and ‘never by a party personally.’” This requirement is a notable change that is intended to confer due process protections on both parties. Consistent with these protections, the regulations prohibit the decision-maker from drawing inferences about a determination regarding responsibility based on a party’s failure or refusal to appear at a hearing or answer cross-examination questions.

After an advisor asks a question on cross-examination, and before the party to whom it is directed answers it, the decision-maker must determine if the question calls for relevant information. All relevant evidence must be admitted, but the decision-maker must exclude evidence based on legally recognized privileges, the complainant’s prior sexual history (with limited exceptions), any party’s medical, psychological, or similar records (without their voluntary, written consent), and party or witness statements that have not been subjected to cross-examination at a live hearing. It is important to note that both investigators and decision-makers must be trained specifically with respect to “issues of relevance,” and such training materials must be publicly available.

Post-hearing

Following the hearing, the decision-maker must issue a written decision simultaneously to both parties, which contains the following information:

• identification of the alleged sexual harassment;

• “the procedural steps taken from receipt of the formal complaint through the determination regarding responsibility”;

• “[f]indings of fact supporting the determination”;

• conclusions regarding the application of the code of conduct and/or applicable policies to the factual findings;

• “a determination regarding responsibility for each allegation and the decision-maker’s rationale for the result”;

• any disciplinary sanctions imposed on the respondent;

• whether remedies will be provided to the complainant (though the specific remedies may remain confidential); and

• information about the appeals process.

Decisions regarding the nature and extent of discipline and remedies are left to each institution. Additionally, institutions must offer appeals equally to both parties on the following bases: (1) procedural deficiencies; (2) bias or a conflict of interest on the part of the investigator, Title IX coordinator, or decision-maker; or (3) newly discovered evidence that was not previously available.

The regulations also expressly prohibit retaliation for participating in the procedures required or permitted by the regulations, and complaints alleging retaliation may be filed according to the institution’s grievance process.

The Legal Challenges Have Begun

Within days of the department’s issuance of the final regulations, critiques began to flood in from various interest groups. Some critics have opined that the regulations actually limit an institution’s responsibility to respond to sexual harassment and assault.

For example, the American Civil Liberties Union (ACLU) swiftly filed a federal lawsuit against Secretary of Education Betsy DeVos and the department, contending that the regulations will “inflict significant harm” on survivors and that, moving forward, fewer reports of sexual misconduct will trigger a recipient’s investigation obligations. In addition, the ACLU expressed concern that the new regulations create a “double standard” for harassment on the basis of sex, in that schools must address harassment on the basis of race, national origin, or disability if it is “severe, pervasive, or objectively offensive,” while the new regulations define sexual harassment more narrowly, indicating that the alleged harassment must be “severe, pervasive, and objectively offensive” to survive dismissal of a complaint prior to investigation.

Critics also have argued that the regulations allow institutions to apply a more stringent “clear and convincing standard” when analyzing potential violations, rather than the “preponderance of the evidence” standard set by previous guidance. Further, student advocacy groups have argued that the regulations offer more protections for respondents in sexual misconduct cases, while effectively discouraging victims from coming forward by mandating that complainants be subjected to rigorous, trial-like cross-examination. Additionally, critics believe that the regulations place unreasonable restrictions on what university Title IX coordinators can and cannot investigate, and further allow institutions to ignore reports of sexually harassing conduct occurring at off-campus events and activities.

Key Takeaways

In light of the regulations, postsecondary institutions that receive federal assistance under Title IX may find the following to be prudent steps to take:

• Review and update sexual harassment complaint and investigation policies and appeal procedures to ensure they meet the protocols mandated by the regulations, and consider what other policies and agreements should be revised.

• Clarify which employees must, may, or must only with a complainant’s consent, report sexual harassment-related allegations to the Title IX coordinator. Train these individuals on how to address reports of sexual harassment, on the institution’s updated protocols for conducting investigations and hearings, and on the institution’s chosen standard of evidence.

• Distribute revisions to the recipient’s policies and protocol in advance of the start of the 2020–2021 academic year and the regulations’ effective date of August 14, 2020, and clearly communicate them to relevant stakeholders, including administrators, employees, students, parents, faculty, staff, and advocacy groups.

• Ensure that the Title IX coordinator’s contact information is prominently displayed on the institution’s website as well as distributed to students, parents or legal guardians (of minor parties), employees, and prospective students and employees so that any person may report sexual harassment in person, by mail, telephone, or email.

Further guidance from the department is anticipated, and recipients are encouraged to follow new developments as the effective date of the regulations draws nearer.