What's Changed

1. Background
   1. Congress enacted Title IX of the education amendments in 1972.
      1. “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681.
   2. The first full Title IX rulemaking took place in 1975.
   3. In the 1980s, federal courts held that sexual harassment constitutes a form of sex-based discrimination under Title VII of the Civil Rights Act and established liability rules for employers. In the 1990s, courts applied similar rules to schools under Title IX.(R. Shep Melnick, Analyzing the Department of Education’s Final Title IX Rules on Sexual Misconduct, BROOKINGS, June 11, 2020.)
   4. The Office for Civil Rights (“OCR”) issued a series of policy guidance documents that established foundational requirements for how schools must respond to sexual harassment.
   5. The most recent policy guidance came through a series of Dear Colleague Letters (“DCL”) and Q&A documents.
      1. In 2011, the Department of Education (“DOE”) issued a DCL on sexual violence that outlined measures schools must take to “end any harassment, eliminate a hostile environment if it has been created, and prevent harassment from occurring again.” (Dear Colleague Letter, Sexual Violence (April 2011); Melnick, supra note 1.)
      2. In 2014, DOE issued more detailed guidance in the form of a Q&A document. (Questions and Answers about Title IX and Sexual Violence (April 2014).)
      3. In 2017, DOE issued a DCL withdrawing the 2011 DCL and2014 Q&A and issuing a new interim Q&A document. (Dear Colleague Letter, Office for Civil Rights Withdraws Guidance on Sexual Violence and Issues Q&A on Campus Sexual Misconduct (September 2017).)
   6. F.In 2018, DOE published a notice of proposed rulemaking to address sexual misconduct under Title IX.
      1. During the notice-and-comment period, DOE received over124,000 comments from the public.
      2. The Administrative Procedure Act requires agencies to respond to all significant comments with an explanation.
   7. On May 6, 2020, DOE released the new Title IX regulations.
      1. The preamble contains DOE’s explanation of the final rule and response to comments. It’s more than 2,000 pages long.
      2. There are 26 pages of new regulations. See 34 C.F.R. pt. 106.
2. Overview of New Title IX Rules
   This section highlights some of the key changes and new requirements.
   1. Substantive Requirements
      1. New terms and definitions
      2. Emphasis on serving impartially and prohibition against bias,conflicts of interest, and prejudgment
      3. Changes to the scope of actionable misconduct
         1. narrowed definition of sexual harassment
         2. parameters on covered activities, individuals, and geography
         3. mandatory dismissal of complaint from Title IX process if not within ambit of Title IX (but may handle under other school process)
      4. HE response and liability standards
         1. deliberate indifference response standard
         2. IHE’s treatment of a complainant or a respondent in response to a sexual harassment complaint may constitute discrimination on the basis of sex under Title IX.
      5. Confidentiality provisions
         1. IHE must keep confidential the identity of any individual who makes a report or complaint of sex discrimination, with limited exceptions.
         2. IHE must keep provision of supportive measures confidential, with limited exception.
         3. preamble suggests IHEs may prohibit parties and advisors from disseminating evidence, for instance through use of non-disclosure agreements.
      6. FERPA
         1. rules indicate IHEs must comply with information-sharing aspects of Title IX rules as well as FERPA.
         2. preamble suggests Title IX overrides FERPA in event of conflict.
      7. Emphasis on constitutional protections
         1. First Amendment speech
         2. Fifth Amendment self-incrimination
         3. Fourteenth Amendment due process
      8. “Rape shield” provisions
         1. no questions or evidence permitted about: (1) complainant’s sexual predisposition; or (2) prior sexual behavior, with limited exceptions.
      9. No “gag orders”
         1. IHEs cannot impose restrictions on ability of either party to discuss allegations under investigation or to gather and present relevant evidence.
   2. Procedural Requirements
      1. Reporting
         1. anyone can report sexual discrimination
         2. contemplates “reports” versus “formal complaints”
         3. focus on complainant autonomy
      2. Notice requirements throughout
      3. Supportive measures
      4. Informal resolution
      5. Prescriptive grievance process
      6. Investigation
         1. no single-investigator models
      7. Hearings
         1. live hearings – in person or virtual
         2. must be recorded
         3. cross-examination
         4. relevancy determinations by decision-maker
         5. party advisors
      8. Appeals
         a)mandatory equal appeal rights on three specified grounds
         b)IHEs may allow additional appeal grounds
      9. Training
         a)new requirements for content of training and who must be trained
3. Discretionary Areas
   The regulations impose new requirements on IHEs but also allow flexibility to make policy decisions. For example:
   1. IHEs may choose:
      1. Whether to use the preponderance of the evidence standard or clear and convincing evidence standard
         1. but must use same standard for formal complaints against students as employees
      2. How to handle misconduct that falls outside of Title IX
      3. Which employees to impose mandatory reporting duties upon
      4. How to define certain terms, such as “consent”
      5. The type of supportive measures and remedies/sanctions to make available
      6. Who to designate to conduct individualized safety and risk analysis in relation to emergency removal and how to conduct such an analysis
      7. Reasonable timelines for the grievance process
      8. Whether to hold all hearings virtually
      9. To adopt rules of order or decorum for hearings
      10. To adopt procedures, rules, or practices as part of the grievance process in addition to those required by Title IX
          1. as long as any additional procedures, rules, or practices apply equally to both parties
      11. To set parameters on advisor’s role
      12. To develop template forms for IHE and party use