Who would have thought in the fall of 2019, when we were all waiting with bated breath for U.S. Secretary of Education Betsy DeVos to issue the Title IX regulations for campus sexual assault that the regulations would be issued in the spring during a pandemic? Yes, indeed – the new Title IX regulations are here and have arrived when all students and educators are working remotely. Of particular note:
- Cross-Examination: Cross-exam will now be permitted by “advisors” to the students. So non-lawyers will be allowed to cross-examine with no judge and no rules of evidence. This will make it critical that students have the assistance of student defense lawyers with actual experience with cross-examination in sexual assault cases.
- Sexual Harassment: The Department of Education (DOE) has opted to diverge from Title VII’s definition of sexual harassment and instead use the Supreme Court’s Title IX-specific definition to require that sexual harassment be both severe and pervasive (instead of “or” pervasive), as well as objectively offensive. This makes it even more critical that students have the assistance of an experienced student defense lawyer who can analyze these new definition requirements.
- Study Abroad: DOE has excluded any behavior on study-abroad programs from Title IX jurisdiction, even when the allegations involved students from the same university.
Here is a link to the DOE’s press release yesterday:
Other highlights of the new regulations are as follows:
Sexual Harassment Defined. Until now, there has been no legally-binding definition of what constitutes sexual harassment in the Title IX context. The new regulations codify that sexual harassment includes sexual assault, dating violence, domestic violence, and stalking – and that all of these are prohibited under Title IX.
Formal Complaint Must be Filed to Initiate Investigation. While anyone can report sexual harassment, a formal complaint must now be filed before a school is obligated to conduct an investigation. Who files this formal complaint? The complainant (ie the person alleged to be the victim), the complainant’s parent or guardian, or the Title IX Coordinator for that college or university.
Location of Alleged Sexual Harassment Matters. A school must dismiss a complaint that alleges any type of sexual harassment that did not occur in the US. As such, any formal complaint of sexual assault that occurred during a study abroad program must be dismissed by the college or university. In addition, any complaint that does not describe conduct that meets the definition of sexual harassment or that did not occur within the school’s educational program or activity must be dismissed. Of course, schools can still address the allegations under their Code of Conduct – just not in the Title IX realm.
Respondent Must be Presumed Innocent. The respondent (ie the person being accused) must be presumed to be not responsible until an investigation and adjudication finds the respondent otherwise.
Standard of Evidence Must be Same for All Formal Complaints of Sexual Harassment. Schools have the choice to use either the preponderance of the evidence standard or the clear and convincing standard as proof to determine responsibility. Whichever standard the school chooses, however, must be the same standard that school uses for all formal complaints of sexual harassment, whether the respondent is a student or an employee, including a faculty member.
Both Parties Must be Given Access to All Evidence. Schools must provide the opportunity for parties and adviors to inspect and review the evidence obtained by the school as part of the investigation. This includes documents and notes from interviews with students and employees, as well as evidence that the school does not plan to use.
Informal Resolution is an Option When a Student is Accused. Schools have the option of offering informal resolution of any sexual harassment claims, as long as both parties agree and it is voluntary. Before any agreement is reached, both parties have the option of withdrawing from the process. Informal resolution cannot be an option where an employee is accused.
There Must be a Live Hearing. All colleges and universities must hold a live hearing. The regulations allow for this live hearing to be conducted virtually or for some of those involved to attend virtually. If any party so requests, the entire hearing must be held with parties located in separate rooms. In these cases, schools must provide the necessary technology so that the parties can still see and hear everything.
Cross-Examination Must be Allowed at the Live Hearing. Without a doubt, this is the biggest change set forth in the Final Rule. Parties’ advisors (which can be attorneys) must be allowed to cross-examine other parties and witnesses at the live hearing, including asking questions to determine credibility. This must be done in real time with back and forth questions – but can never be done by a party directly. What if a party does not have an advisor, you ask? Why, the school will appoint one free of charge!
The new regulations provide that no party or witness can be forced to submit to cross-examination. However, the consequences are great if a party or witness chooses not to: the statements of this party or witness will be excluded and not considered at all by the decision-maker. The decision-maker will still evaluate any evidence that does not involve those statements, if there is any such evidence. This is a game-changer in the Title IX world.
The New Regulations are Effective on August 14, 2020. If you are an educator involved in any way with your school’s Title IX process, your summer just got busy. The regulations require that all schools’ policies comply with the Final Rule by August 14, 2020. Unlike former guidance issued (the 2011 Dear Colleague Letter and the Q&As in 2014 and 2017, for example), these regulations are legally binding on all schools receiving federal funds. Schools will no doubt be scrambling to not only read and understand these new regulations, but then to revise their existing policies to be in compliance.
Resources Available. In an effort to navigate the complexities of the regulations, the DOE released a Fact Sheet, a Final Rule overview, a document detailing the major provisions of the Final Rules, and a document highlighting changes between the prior Notice of Proposed Rulemaking and the Final Rule. In addition, the Office for Civil Rights released a Webinar describing the Final Rule and many of its features.
The links for these resources can be found here: https://www2.ed.gov/about/offices/list/ocr/newsroom.html
By Shanlon Wu and A. Ehrhardt
