Department of Education Releases Final Regulations for Sexual Harassment and Sexual Assault

May 8, 2020

On May 6, 2020, Secretary of Education, Betsy DeVos, announced the release of final regulations concerning Title IX. Title IX is the Federal statute that prohibits discrimination on the basis of sex in education programs and activities that receive Federal financial assistance. The Department of Education (“DOE”) is the Federal agency responsible for enforcing Title IX.
Previously there was DOE guidance on how schools should handle the issue of sexual harassment, including sexual assault. In 2011, the Department of Education published its infamous Dear Colleague Letter, which was withdrawn in 2017, and replaced with Questions and Answers. These final regulations replace this guidance and impose legally binding rules with respect to responding to sexual harassment. The final regulations go into effect in August and purport to strengthen protections for victims of sexual harassment and assault while also encouraging full transparency and due process for those accused. The full final regulations can be found here. These are some of the highlights:

  • Definition of Sexual Harassment. The final regulations define the term sexual harassment to mean unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education. In defining the term this way, the DOE rejected the idea of sexual harassment under Title IX consistently with the Title VII standard (Title VII requires conduct of a sexual nature to be severe or pervasive in order to constitute actionable sexual harassment). In addition, whereas in prior DOE guidance sexual harassment was interpreted to include sexual assault, the final regulations now explicitly define sexual harassment as including “sexual assault, dating violence, domestic violence, and stalking.”
  • Standard of Proof. The 2011 Dear Colleague Letter issued during the Obama administration changed the standard of proof in sexual harassment and sexual assault cases from “clear and convincing” to “preponderance of the evidence,” the lowest evidentiary standard requiring a merely showing that the conduct was “more probable than not.” The new final regulations allow schools to select one of these standards of evidence to apply to all proceedings and for all students and employees, including faculty.
  • Actual Knowledge. The final regulations do away with the concept of constructive notice (“should have known”) and instead require “actual knowledge” of sexual harassment. As a result, only a recipient with actual knowledge of sexual harassment commits intentional discrimination if the recipient responds in a deliberately indifferent manner. Actual knowledge is defined as “notice of sexual harassment or allegations of sexual harassment to a recipient’s Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient, or to any employee of an elementary and secondary school. Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge.” The stated reason for the change is that Title IX is a statute “designed primarily to prevent recipients of Federal financial assistance from using the funds in a discriminatory manner.” As a result, “it is a recipient’s own misconduct – not the sexually harassing behavior of employees, students, or other third parties – that subjects the recipient to liability in a private lawsuit under Title IX.” “The recipient cannot commit its own misconduct unless the recipient first actually knows about the sexual harassment,” according to the final regulations.
  • Role of the Formal Complaint. Consistent with the idea that actual knowledge creates liability, the final regulations obligate a recipient-school to investigate and adjudicate sexual harassment whenever a complainant files, or a Title IX Coordinator signs, a formal complaint. A “formal complaint” as used in the final regulations means “a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the recipient investigate the allegation of sexual harassment.” It is ambiguous from the regulations whether a complaint filed without a specific request for an investigation would meet this definition. With that said, the final regulations also make clear that a formal complaint IS NOT necessary to trigger a recipient’s obligation to respond promptly and meaningfully to sexual harassment. As discussed above, when a federally funded school has actual knowledge of sexual harassment, or allegations of sexual harassment, that knowledge activates the recipient’s legal obligation to respond promptly, including by offering supportive measures to a complainant. A recipient of federal financial assistance must respond in a manner that is not clearly unreasonable in light of the known circumstances, whenever a recipient has actual knowledge of sexual harassment in the recipient’s education program or activity.
  • Grievance Process. The final regulations specify the basic requirements for a grievance process related to alleged sexual harassment. At a minimum the grievance process must, among other things:
  • Involve an objective evaluation of all relevant evidence – including both inculpatory and exculpatory evidence;
  • Assess credibility based on factor(s) other than a person’s status as a complainant, respondent, or witness;
  • Be facilitated by a Title IX Coordinator, investigator, or other decision-maker who has received training on a variety of specified issues;
  • Include a presumption that the respondent is not responsible for the alleged conduct until a determination at the conclusion of the grievance process;
  • Include “reasonably prompt” time frames for completing the grievance process and the filing of appeals;
  • Describe the range of possible disciplinary sanctions and remedies; and
  • State whether the standard of evidence is preponderance of the evidence or clear and convincing evidence standard, and apply the same standard of evidence to all formal complaints of sexual harassment.
  • Rights to Notice, Advisor and Hearing. For post-secondary institutions, the final regulations provide for rights of students’ to written notice of allegations, the right to an advisor (who may, but is not required to, be an attorney), the right to request a live hearing (although such hearing if requested may be conducted in separate rooms using technology to enable participants to see and hear) and the right to submit, cross-examine, and challenge evidence at a live hearing. Cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally. Schools also may not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence.
  • Input from Victims. The final regulations also provide survivors of sexual harassment to weigh in on decisions about how a school responds to these incidents.
  • Places Regulations Apply. The final regulations make clear that they apply to school programs or activities on and off campus, including fraternity or sorority houses. But they do not apply during study abroad programs as the duty to investigate is triggered only when the school has actual knowledge of sexual harassment in one of its programs “in the United States.”
    It remains to be seen whether these final regulations will actually address the significant challenges schools have faced in balancing the importance of reporting and eliminating sexual harassment with the rights of those accused to defend themselves. Notably, many schools chose not to change their Title IX policies and procedures following the DOE’s withdrawal of the 2011 Dear Colleague Letter and 2017 publication of 2017 Questions & Answers. But schools will have no choice but to review and change their policies to comply with the final regulations, which unlike prior guidance, is now legally enforceable.