Title IX Updates: What’s New and What You Need to Do About It (Part 1)

May 27, 2020

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in 2011 and 2014, these regulations have gone through a formal rulemaking process, which means they cannot simply be rescinded.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.

  1. 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).

  2. 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.

  3. 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.

  4. 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).

  5. 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.