HMBR Issues Comprehensive Summary of New Title IX Regulations
On May 6, 2020, the U.S. Department of Education issued its much-anticipated new Title IX regulations on sexual harassment. The Department stated that new regulations will go into effect on August 14, 2020. These new regulations mark the first time in the history of the Title IX statute (passed in 1972) that the Title IX regulations themselves, not Departmental policy guidance, prohibit sexual harassment in education programs and activities and provide specific rules for how colleges and universities must address sexual harassment.
To assist your institution in understanding the changes required by the new regulations, we have prepared the HMBR Summary of the Key Provisions in the New Title IX Regulations. The HMBR Summary provides an overview of the major changes and requirements in the new Title IX regulations, including the following provisions:
- Deliberate Indifference: As expected, the Department adopted “deliberate indifference” as the legal standard for OCR to find an institution in violation of Title IX for its response to campus sexual harassment. Under this standard, a recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States must respond in a manner that is not deliberately indifferent.
- Recipient’s Response: The final regulations require that educational institutions investigate formal complaints of sexual harassment using the specific grievance process outlined in the new regulations. Without a formal complaint, recipients must still respond in a manner that is not deliberately indifferent, including providing supportive measures.
- Sexual Harassment Definition: The final regulations use a revised definition of sexual harassment that includes sexual assault, quid pro quo harassment, harassment that is “severe and pervasive, and objectively offensive,” and now also, domestic violence, dating violence, and stalking, as defined by the Violence Against Women Act (VAWA);
- Dismissal: The final regulations require that, for purposes of sexual harassment under the final Title IX regulations, institutions must dismiss complaints that do not fall within the scope of the final Title IX regulations. The Department has clarified, however, that schools may address sexual misconduct that falls outside the scope of the final Title IX regulations under their codes of conduct;
- Standards of Evidence: The final Title IX regulations require that recipients use either “the preponderance of the evidence standard” or “the clear and convincing” standard for the investigation and adjudication of formal complaints of sexual harassment. The Department stated that recipients must use the same evidentiary standard for all sexual harassment proceedings, including cases involving students and employees. The Department dropped the proposed requirement that the same evidentiary standard be used for all disciplinary proceedings;
- Grievance Process Requirements: The final regulations include new provisions that preclude the use of the “single investigator model” and require that institutions provide live hearings, cross-examination by the parties’ advisors (not the parties), advisors as needed at hearings, and access to evidence during the investigation;
- Due Process: The final regulations include a specific presumption of “no responsibility” for Respondents and other heightened due process protections;
- Bias and Conflict of Interest: The final regulations include specific prohibitions against bias and conflict of interest;
- Appeals: The final regulations require that an appeals process be offered to complainants and respondents to challenge the written determination regarding responsibility or the dismissal of a complaint or allegation.
- Recordkeeping: The final regulations require recipients to maintain records for seven years (up from 3 years in the proposal) relating to the investigation and adjudication of formal complaints of sexual harassment, informal resolutions, and supportive measures. The regulations also require that recipients post on their websites the training materials used for those involved in the recipient’s investigation, adjudication, and informal resolution processes.
HMBR’s Education Group includes several former Department officials who worked directly on Title IX issues in the Department’s Office of the General Counsel and Office for Civil Rights. With unique expertise and experience in this area, our Education Group offers practical, cost-effective, and high-quality legal services relating to Title IX compliance.
HMBR attorneys are continuing to closely review the final Title IX regulations and accompanying lengthy analysis, and we will be updating the summary on our website. We will also provide additional information and resources on the final Title IX regulations in the coming days and weeks. These will include a new HMBR Title IX Compliance website and complimentary webinars on the final regulations. We are also excited to be participating with a group of fellow Title IX experts in the development of Joint Guidance on the Final Title IX Regulations. This free guidance, which is being coordinated by SUNY’s Student Conduct Institute, will be posted on our website as soon as it is available.
Please feel free to contact any member of the HMBR Education Group with questions or if we can be of other assistance.