On May 6, 2020, the Department of Education (DOE) issued the long-awaited
final Title IX regulations, which go into effect Aug. 14, 2020. This tight timeline will mean a
lot of policy and procedure changes for many schools in a very short
time frame. Unlike the informal guidance issued by President Obama’s
administration in 2011 and 2014, these regulations have gone through a
formal rulemaking process, which means they cannot simply be rescinded.
These regulations will remain law for the foreseeable future, regardless of
political sea changes.
This multipart series addresses changes to Title IX’s jurisdictional scope,
as reflected in the new regulatory definitions; its grievance, informal
resolution, training and investigative requirements; and the formal hearing
and appeals processes.
In updating Title IX’s regulatory definitions, the DOE borrowed heavily
from language in the U.S. Supreme Court’s 1998 and 1999 landmark Title IX
decisions in Gebser v. Lago Vista Independent School District and Davis v. Monroe County Board of Education. This context is
important to keep in mind because, although some of the definitions below
represent major changes from Obama-era guidance, in many respects, they are
intended to align the DOE with the way courts have applied Title IX for the
past 20 years. That said, borrowing language from case law and inserting it
directly into regulations may create more questions than it answers in some
cases. With that context in mind, some of the major definitional changes
are set out below.
- Education Program or Activity.
The DOE has added two new provisions in the final regulations
specifically aimed at covering off-campus conduct.
- The first is that an “education program or activity” includes any events
or circumstances where “the school exercised substantial control over both
the respondent and the context[.]” This language comes straight from Davis, where it originally referred to the control K-12 schools
have over elementary school students on school property. As used in the
regulations, it is likely to encompass school employees or other agents who
engage in misconduct at any off-campus, school-sponsored events.
- The second new provision covers “any building owned or controlled by a
student organization that is officially recognized by a postsecondary
institution.” The DOE has been very clear that this provision is intended
to cover sexual misconduct at off-campus Greek houses. This provision
likely also will encompass off-campus events put on by student
organizations (e.g., when the club soccer team rents a local event space
for a mixer).
However, the DOE has also been clear that these regulations do
not cover conduct occurring during study abroad
programs. Therefore, it is up to each institution to decide whether it
wants to voluntarily include study abroad and other off-campus misconduct
within the scope of its Title IX procedures.
- Sexual Harassment. The final regulations make several changes intended to narrow the
definition of “sexual harassment” and sync that definition with the
rules courts have applied since Gebser and Davis. The
regulatory definition of “sexual harassment” now includes three types
of sex-based conduct.
- First, Title IX covers “quid pro quo” harassment, when a school employee
conditions access to educational benefits on unwelcome sexual conduct. Note
that this provision does not cover sexual conduct by students or other
agents.
- Second, sexual harassment includes “unwelcome conduct that a reasonable
person would determine is so severe, pervasive, and objectively offensive
that it effectively denies a person equal access to the school’s education
program or activity.” This represents the DOE’s efforts to raise the
threshold for Title IX harassment from Obama-era rules, and match the
Supreme Court’s definition.
- Third, the new definition incorporates four components from the Clery Act
and the Violence Against Women Act: sexual assault, domestic violence,
dating violence and stalking. These additions are intended to clarify that
one particularly severe incident (even if not “pervasive”) can qualify as
Title IX sexual harassment if it falls within any of these definitions.
Perhaps most importantly, this definition covers conduct by employees
against other employees — not just conduct directed at students. The DOE
has been very clear that it expects schools to apply the same procedural
protections and the same standard of proof to employee/employee sexual
harassment claims as to student claims, provided the employee claims meet
the definitional requirements above. This is true even for at-will
employees. So, in addition to updating Title IX policies and procedures,
schools will need to make sure their employee handbooks and collective
bargaining agreements are updated to account for these new procedural
requirements.
- Actual Knowledge and Deliberate Indifference.
These two definitions, taken together, govern when and how a school
must respond to (or be liable for failing to respond to) reports of
sexual harassment.
- “Actual knowledge” means a mandated reporter has notice of “sexual
harassment or allegations of sexual harassment.” In the K-12
context, all employees are now mandatory reporters. Colleges and
universities have more flexibility in this regard and can determine for
themselves which employees have “authority to institute corrective
measures” such that their knowledge of a sexual harassment complaint is
“actual knowledge” for Title IX purposes.
- A school cannot be liable for failing to respond to known allegations
of harassment unless it acts with “deliberate indifference,” defined as
actions that are “clearly unreasonable in light of the known
circumstances.” This is always a fact-specific inquiry, but promptness,
impartiality, freedom from conflicts of interest, and adherence to
published policies and procedures will always be very important. And,
the school’s response must always include offering supportive measures
(more on that below). Again, these definitions come directly from Gebser and
Davis.
- Formal Complaints Versus Reports of Sexual Harassment.
Based on the DOE’s proposed regulations issued in 2018, commenters were
concerned that victims would be deterred from seeking help because only
a “formal complaint” of harassment triggered a school’s duty to
respond. Now, a school’s duty to respond arises on receiving any
“report” of sexual harassment. Also unlike in the proposed regulations,
there is no “safe harbor” for schools that provide supportive measures
— offering supportive measures is now required in every case.
- A “report” means a report of sex discrimination (including sexual
harassment) made by any person, at any time, and by any means (in person,
phone, mail or email) that results in the Title IX coordinator receiving
the person’s verbal or written report. Reports are not limited to a
school’s campus community and may come from others, such as on-campus
visitors. On receiving a report, the Title IX coordinator must promptly:
- contact the complainant, i.e., the alleged victim (if that person can be
identified);
- offer the complainant supportive measures;
- explain the process of filing a formal complaint;
- explain that supportive measures can be available with or without a
formal complaint;
- consider the complainant’s wishes with regard to supportive measures;
- contact the respondent, who must also be offered supportive measures; and
- if supportive measures are not provided to a complainant, the school must
document why it did not provide a complainant with supportive measures and
why not providing such measures is not deliberately indifferent.
- A “formal complaint” is 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.” Only those who are “participating in or attempting to
participate in” the school’s “education program or activity” (i.e.,
students, employees, applicants and, in some cases, parents) may file a
formal complaint. The formal complaint must contain the complainant’s
signature (physical or electronic) or otherwise definitively indicate that
the complainant is the person filing the complaint. Filing a formal
complaint triggers the school’s duty to initiate the grievance process
(discussed in a later alert).
- Supportive Measures.
As noted above, one of the key concepts in the new regulations is the
importance of offering “supportive measures” upon receipt of any report
or formal complaint of sex discrimination. The regulations define
supportive measures as “non-disciplinary, non-punitive individualized
services offered as appropriate, as reasonably available, and without
fee or charge to the complainant or the respondent[.]” These measures
are designed to preserve the complainant’s access to education without
unreasonably burdening the respondent. Examples of possible supportive
measures include counseling, extensions of deadlines or other
course-related adjustments, modifications of work or class schedules,
campus escort services, mutual contact restrictions, changes in work or
housing locations, leaves of absence, increased security and monitoring
of certain areas of campus, and other similar measures. Supportive
measures should be coordinated by the Title IX coordinator and kept
confidential to the extent reasonably possible. Importantly, supportive
measures should be equitably offered to both the complainant and the
respondent.
As is evident from these definitions, schools will need to decide quickly
how broad their Title IX coverage will be. For schools that choose to
prohibit sexual misconduct that falls outside these new limitations, they
must decide whether they will apply Title IX processes to address those
issues, or whether they will develop other sexual misconduct policies that
do not incorporate all of Title IX’s procedural requirements (to be
addressed in more detail later in this series).
For assistance in complying with these obligations or other Title IX
concerns, please contact the authors below or any member of McGuireWoods’
education team.
