Off to the Races in Title IX:  What Colleges and Universities Need to Know Now About the Proposed New Title IX Rules

By Debbie Osgood and Linh Nguyen

The U.S. Department of Education has released its much anticipated proposal to amend the regulations implementing Title IX and specifically the regulatory requirements relating to the obligations of colleges and universities to respond to sexual harassment.  The press release and rulemaking documents are available here.  Below we provide a recap on the rulemaking process and the major changes being proposed.

How long will the rulemaking process take and when will the proposed new rules go into effect?  

It is important to remember that these are proposed rules.  Think of this as the horses getting ready to enter the starting gate. We have a long way to go before the race will be over.  The next steps are:

1. Federal Register Publication (TBD): The starting gate is lifted!  The proposed Title IX regulations will be published in the Federal Register “soon”.
2. Public Comment Period (60 days): The horses are running.  The Federal Register publication date starts a 60-day clock for the public to submit comments on the proposed rules to the Department.  The 60-day period, if started now, would end in mid-January 2019.  It is possible that the filing date could be extended given that the 60-day period runs over the holidays and at the start of a new semester for colleges and universities, and given the exceptionally robust response to the proposed regulations expected from colleges and universities, advocates for complainants and for respondents, and others, including perhaps Congress.
3. Department Review (TBD): The horses are still running. Once the public comment period ends, the Department will review and analyze the comments.  While there is no set time-frame for this stage, it will likely be at least nine to eighteen months after the close of the comment period until the final rules are issued.  So we are looking at, at least another year or more before the final rules would be issued. By way of reference, the last time the Department revised its Title IX regulations, the process (in the context of the single sex-regulations) took over two years (proposed rules issued in March 2004 and final regulations issued in October 2006).
4. Issuance of New Regulations (TBD): The horses have crossed the finish line. The Department will issue new regulations or, possibly but unlikely, decide not to issue new regulations and continue to use policy guidance in this area.   The final rules may or may not look very much like the proposed rules. 
5. Deadline for Educational Institutions to Implement New Regulations (TBD). The horses have crossed the finish line and (barring litigation stopping the implementation of the new regulations) then some!

The Department has certified that any changes in the new regulations will be considered “significant” and therefore will have an effective date of at least sixty days after publication in the Federal Register.

How would the proposed rules, if adopted, affect the obligations of colleges and universities under Title IX to address sexual misconduct?

The proposed Title IX regulations would not relieve schools of their obligations under Title IX to respond to sexual harassment, but would narrow the scope of these obligations and prescribe specific procedural requirements relating to how allegations should be addressed.  

The proposed Title IX regulations maintain the same general regulatory framework for broadly addressing sex discrimination (for example, requiring schools to have a public non-discrimination policy, designated Title IX Coordinator, and prompt and equitable grievance procedures).  Most significantly, the Department is proposing to add two new specific regulations that directly address sexual harassment.  The intent is that the new regulations would essentially codify the rules in this area that have been evolving based on OCR policy and recent federal case law.  

For the sake of clarity, we are posting here the entirety of the proposed new regulations (just the regulations, not the Department’s narrative description or summary).  Discussed below are some of the major provisions in the proposed two new regulations.  

1. New Section: 34 C.F.R. 106.44 Recipient’s Response to Sexual Harassment
   • A New “Safe Harbor” – Narrowed Obligation to Respond: Schools will be found to be in violation of Title IX only if they are “deliberately indifferent” to “actual knowledge” of possible sexual harassment.  Schools are thereby granted a “safe harbor” if they are not deliberately indifferent to actual knowledge of possible sexual harassment.
   • “Actual knowledge” is defined as notice to an official who has authority to institute corrective measures on behalf of the school and is defined as more than an individual with an obligation to report sexual harassment (e.g., responsible employee).
   • Schools have an obligation to (1) meaningfully respond to every known report of sexual harassment and (2) investigate every formal complaint.
   • Schools that follow the specific grievance procedures outlined in the new proposed regulation (Section 106.45) will not be considered to be deliberately indifferent.
   • In the absence of a formal complaint, schools must offer and implement supportive measures to the complainant.
   • Multiple Complaints: The proposed rules provide that a Title IX Coordinator must file a formal complaint when a school has actual knowledge of reports of conduct that could constitute sexual harassment against multiple complainants by the same respondent.
   • Narrowed Jurisdiction: Schools would be required to respond to a formal complaint of sexual misconduct that occurred on campus or within an “education program or activity,” and to adopt a policy and grievance procedures that apply to discrimination occurring against “a person in the United States.” 
   • Narrowed Definition of Sexual Harassment: The proposed rules define sexual harassment under Title IX 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 school’s education program or activity.”  This definition is narrower than the currently used definition of sexual harassment, which is “unwelcome conduct of a sexual nature.”
2. New Section: 34 C.F.R. 106.45 Grievance Procedures for Formal Complaints of Sexual Harassment
   • Specific New Requirements: The current Title IX regulations require institutions to provide a “prompt and equitable” resolution of complaints of sex discrimination. This proposed new regulation (Section 106.45) details what the Department means – and will require – for a “prompt” and “equitable” grievance procedure. In lieu of the old 60-day timeframe for resolving complaints, the regulations require reasonably prompt timeframes. The proposed regulation also outlines the essential components of “equitable” procedures with an emphasis of due process protections for the parties.
   • Timeframes: Schools must include reasonably prompt timeframes for completion of the grievance process, including reasonably prompt timeframes for filing and resolving appeals (if appeals are available). Moreover, schools must include a process for temporarily delaying the grievance process or requesting a limited extension of time for good cause. Good cause exists where parties or witnesses are absent, there is concurrent law enforcement activity, or there is need for language assistance or accommodations for disabilities. Complainants and respondents must receive written notice of any delay or extension granted and the reason for such action.
   • Formal Complaints: Institutions must have grievance procedures designed to address formal complaints of sexual harassment.
   • Components of Equitable Procedures: The proposed new regulation requires that grievance procedures include provisions to:
     • Treat complainants and respondents equitably;
     • Make objective determinations of all relevant evidence – including both inculpatory and exculpatory evidence;
     • Require coordinator(s), investigators and decision-makers to be free from any conflict of interest or bias.
     • Include a presumption that the respondent is not responsible for the alleged misconduct until a determination of responsibility is made at the end of a grievance procedure;
     • Include reasonably prompt timeframes;
     • Describe the range of possible sanctions and remedies that a school may implement against an individual who is found responsible;
     • Describe the standard of evidence to be used to determine responsibility;
     • Describe the procedures and bases for both parties to appeal a determination of responsibility (if appeals are available);
     • Describe the range of supportive measures available to both parties.
   • Notice. Notice to the parties must be provided with specific details, including the allegations and the applicable policies and procedures.
   • Specific Requirements for Investigations:
     • Dismiss complaints that allege conduct that does not constitute “sexual harassment” as defined.
     • Ensure procedural protections are in place for both parties, including an equal opportunity to present witnesses and other evidence;
     • Provide for a live hearing (end of the “single investigator” or “investigator-only” model): “At the hearing, the decision-maker must permit each party to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at a hearing must be conducted by the party’s advisor of choice.”
     • Opportunity for both parties to inspect and review evidence obtained as part of the investigation.
     • Create and provide an investigative report to the parties ten days prior to a hearing.
   • Specific Requirements for Determinations Regarding Responsibility:
     • The decision-maker(s) cannot be the same person as the Title IX Coordinator or the investigator and must issue a written determination.
     • Use the same standard of evidence (the preponderance of the evidence standard or the clear and convincing evidence standard) that is used for student conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanction, and use the same standard of evidence for complaints against students and for complaints against employees, including faculty.
   • Informal Resolution: Informal resolution is permitted when both parties are provided written notice of the allegations and process and provide voluntary written consent to the informal process.
   • New Formal Recordkeeping Requirements.

What should colleges and universities do in the interim before the proposed new rules take effect?

The upcoming public comment period provides an important opportunity for the higher education community – including students, faculty members, and administration officials – to provide input on how colleges and universities should be required to handle sexual harassment and sexual violence on campus. This is the time to share the lessons learned by higher education institutions in the over seven years since the issuance of the 2011 Dear Colleague Letter on Sexual Violence on how best to prevent and respond to sexual harassment.  In the months ahead, and in the spirit of continuous improvement, we should use this debate as an opportunity to assess and discuss what has been working and what has not, to become even better at addressing the issues at stake.  What has worked and what has not worked in terms of policy development, investigative practices, training, documentation and more?  What are the best practices that have been developed?  What are the landmines that should be avoided? 

Colleges and universities may also want to begin reviewing their policies and procedures (again) in light of the possible changes to the regulations.  Specific areas to be assessed should include issues relating to whether a consistent evidentiary standard is used to address all forms of sexual harassment (students and employees) and all forms of misconduct. Issues relating to the structuring of the investigative process should also be assessed, including the use of a hearing model and cross examination in the hearing process.

Finally, regardless of any changes in the federal Title IX regulations, colleges and universities need to continue to take heed of their obligations under evolving state law in this area (particularly related to the duty of care institutions owe to their students) as well as under the Clery Act, the Violence Against Women Act and other related federal laws.  Colleges and universities will also want to bear in mind the expectations of their community in this area, where “Title IX compliance” is now part of the educational package that students, their parents and the community expect from their colleges and universities.

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HMBR is available to provide specific advice on how this regulatory development may affect your campus policies and procedures or to provide other assistance, including drafting public comments or reviewing current policies, procedures and practices. Should you like assistance, please contact HMBR’s Higher Education Group at 312-946-1800.