11/21/2018

Department of Education Proposes New Title IX Regulations Governing Sexual Harassment and Assault

By Jenni Ives and Carroll Bible

On November 16, 2018, the U.S. Department of Education proposed a new rule under Title IX, the 1972 federal civil rights law that prohibits discrimination on the basis of sex in education programs and activities that receive federal funding. The proposed rule would be the first to govern how educational institutions nationwide must meet their Title IX obligations. It replaces prior nonbinding guidance from the Obama administration that called for aggressive enforcement of the law. Secretary of Education Betsy DeVos rescinded that guidance in 2017. 

If enacted, the new rule will materially change how cases of sexual misconduct are handled at colleges and universities. It includes the following significant and controversial changes:

• Adopts a more narrow definition of what constitutes actionable sexual harassment. Sexual harassment is defined as "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." Previously, the Obama-era guidance defined sexual harassment more broadly, as "unwelcome conduct of a sexual nature." 
• Sets limitations on a college's legal obligation to respond. Under the proposal, a college or university is obligated to investigate only cases in which a formal complaint is made and the alleged conduct occurred on campus or within an educational program or activity. Critics note that many alleged incidents of sexual misconduct are not formally reported and occur off campus, thus falling outside the scope of the new rule.
• Outlines required elements of grievance procedures. The proposed rule requires colleges and universities to investigate every formal complaint, unless the alleged conduct does not meet the definition of sexual harassment, or did not occur within an educational program or activity. Provided a school follows grievance procedures consistent with the proposed rule, it can claim a safe harbor against a finding of deliberate indifference.
• Under the new rule, grievance procedures must include: 
  • Use of "live hearings," including the right to cross-examine the accuser through a lawyer or other third party.
  • A presumption of innocence throughout the grievance process.
  • Use of a neutral decision-maker separate from the Title IX coordinator or investigator. This represents a departure from the single-investigator model commonly used by many educational institutions today.
  • The option to use a higher standard of proof. Under the proposal, a college or university may choose either the higher "clear and convincing evidence" standard or the lesser "preponderance of the evidence" standard previously advocated by the Obama administration.
  • The equal opportunity of both parties to test the credibility of parties and witnesses through cross-examination by a third party, subject to “rape shield” protections.
  • Equal opportunity for parties to appeal, if appeals are offered.
• Sets a "deliberate indifference" liability standard: A college or university is liable if it is "deliberately indifferent" to known sexual harassment, meaning its response is "clearly unreasonable in light of known circumstances." Previously, the Office of Civil Rights reviewed whether educational institutions responded promptly and effectively to sexual harassment.
• Allows the use of mediation and informal resolution procedures. Prior guidance stated that mediation was not appropriate in cases involving sexual assault. The new rule would allow colleges and universities to use informal resolution procedures provided both parties voluntarily agree.

The proposed rule is subject to a 60 day public comment period from the date of its publication in the Federal Register.