By attorneys Emily Kolbe, Rebecca Reif, and Miriam Van Heukelem
Over a year ago, the U.S. Department of Education ("DOE") repealed several guidance documents on sexual misconduct under Title IX, the federal civil rights law which prohibits sex discrimination in federally-funded education programs and activities, and provided notice of its intent to promulgate regulations.
The proposed regulations have been eagerly anticipated, particularly after The New York Times leaked a version of them earlier this year. On Friday, November 16, 2018, the DOE formally issued its proposed regulations, which are intended to "improv[e] schools' responses to sexual harassment and assault," following "research, deliberation, and gathering input from students, advocates, school administrators, Title IX coordinators, and other stakeholders." Please note, these regulations are proposed, and are subject to a comment period and revision before becoming final. The notice and comment period has not yet begun, because the proposed rules have not yet been published in the Federal Register. Once the rule is published in the Federal Register, comments will be accepted for 60 days. Comments may be submitted through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery.
The proposed regulations differ significantly from both prior agency guidance and the leaked regulations and are sure to result in a shift in sexual harassment and assault issues under Title IX. The major areas of change include:
Definition of Sexual Harassment. In order to provide clarity and "ensure that only objectively serious behavior that . . . would jeopardize a student's access to education, is actionable under Title IX," the DOE is proposing prohibited "sexual harassment" be defined as one of the following:
- A school employee conditioning an educational benefit or service upon a person's participation in unwelcome sexual conduct (often called quid pro quo harassment); or
- 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 school's education program or activity (often called hostile work/educational environment harassment), or
- Sexual assault as that crime is defined in the Clery Act regulations (which is an offense that meets the definition of rape, fondling, incest, or statutory rape as used in the FBI's UCR program).
A School's Obligation to Respond. In order to bring the regulations in line with court decisions under Title IX, the Department is proposing schools only have an obligation to act when they have "actual knowledge" of sexual harassment.
- For all schools, a report of alleged sexual harassment to a Title IX Coordinator will constitute "actual knowledge,"
- For K-12 schools, a report of student-on-student sexual harassment to a teacher will constitute "actual knowledge," and
- For colleges and universities, a report to "an official with authority to take corrective action," will constitute actual knowledge.
In addition, under the proposed regulations, schools are only liable under Title IX for "deliberate indifference" (meaning acting clearly unreasonably in light of known circumstances) for the school's response, or lack of response, to sexual harassment.
Jurisdiction. The DOE seeks to clarify when a report of sexual harassment is within the school's jurisdiction. It proposes alleged conduct must "occur within a school's own program or activity," which may or may not be on campus, and must have been perpetrated against someone who is "in the United States." As the DOE notes, this jurisdictional definition will affect persons in study abroad programs.
Procedures. The proposed regulations require schools to "respond meaningfully" to each report of sexual harassment. The proposed regulations permit a complainant (or Title IX Coordinator) to file a formal complaint, in which case an investigation and grievance procedures will commence, or proceed without a formal complaint and investigation, and offer supportive measures to the complainant. However, formal complaints may need to be filed against the complainant's wishes in the K-12 setting (in recognition of the greater need to protect children), and in colleges and universities when there is a possible pattern of sexual harassment. The proposed regulations also include specific procedures for formal complaint resolution, many of which constitute a departure from prior guidance, such as:
- A presumption of innocence for the respondent throughout the process;
- Objective evaluation of all relevant evidence, including exculpatory evidence;
- Placement of the burden of proof and evidence gathering on the school, not the parties;
- Equal opportunities for the parties to present and comment on witnesses and evidence, and to be accompanied by an advisor, who may be an attorney;
- No restriction on the ability of the parties to discuss the allegations or gather evidence (which could affect admonitions on confidentiality and non-retaliation);
- Written notice to parties at various steps of the proceeding, including the opportunity to review and comment on the evidence gathered by the school investigator and/or the investigator's report; and
- A prohibition on the "single investigator" or "investigator only" model in which a single investigator both finds facts and determines whether the respondent is responsible/not-responsible;
- Use of either the clear and convincing or preponderance of the evidence standard, with some restrictions on the latter;
- *For K-12 schools, a hearing would be optional, but the parties must be allowed to submit written questions to challenge each other's credibility before the decision-maker makes a determination; and
- *For colleges and universities, a final determination would be made at a live hearing, in which cross-examination is allowed, with protections consistent with rape shield laws and avoiding personal confrontation.
The proposed regulations would also permit a facilitated informal resolution of a sexual harassment complaint, if voluntary and the parties provide informed and written consent.
Recordkeeping. The proposed regulations also contain affirmative requirements to create and maintain records on sexual harassment reports, supportive measures, investigations, informal resolutions, etc., and allow parties to request copies of the records pertaining to their case.
Please note this is only a brief summary of the proposed regulations' highlights. For a comprehensive review, please see the DOE's Press Release, which has a full copy of the text of the proposed regulations: https://www.ed.gov/news/press-releases/secretary-devos-proposed-title-ix-rule-provides-clarity-schools-support-survivors-and-due-process-rights-all
We will be monitoring the proposed regulations as they move forward. If you have further questions, and/or are seeking assistance, please contact the Ahlers & Cooney Education Law Group.
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