Final Title IX regulations require major changes to how colleges and universities handle sexual assault and harassment

The U.S. Department of Education on Wednesday, May 6, released its long-awaited final regulations governing campus sexual assault under Title IX, the law prohibiting sex discrimination at federally funded institutions.

The proposed regulations were published in November 2018. The regulations will be the first Title IX guidance published by the U.S. Department of Health and Human Services Office for Civil Rights to go through a formal notice-and-comment process since 1997, and unlike guidance issued by the President Barack Obama’s administration in 2011 and 2014, these regulations will have the force of law behind them. Colleges and universities will be required to comply with the regulations by August 14.

Below are highlights of the changes required by the final regulations:

• Colleges and universities will now be required to allow cross-examination of the complaining and responding parties, as well as any witnesses, during a live hearing led by institution officials. Cross-examination will be conducted by advisers for parties, including legal counsel, but not the parties themselves.
• Colleges are only obligated to respond to reports of sexual harassment that occurred off-campus if the location is in use by an officially recognized student or institution organization, such as recognized fraternity or sorority housing or athletic housing.
• Colleges will be able to determine whether to use a “preponderance of the evidence” or “clear and convincing” standard as a burden of proof and must use the same standard for all complaints, no matter if they involve student or faculty misconduct.
• Stalking, domestic violence and dating violence are now officially considered examples of sexual harassment under Title IX.
• The definition of sexual harassment is more narrow than previous guidance. It is defined as “any unwelcome conduct that a reasonable person would find so severe, pervasive and objectively offensive that it denies a person equal educational access.” Reports of sexual assault, dating violence, domestic violence and stalking do not need to meet the description of “severe, pervasive and objectively offensive.”
• Colleges are not obligated to handle complaints of sexual harassment that occurs outside the United States. This means any harassment or assault that happens in American education programs abroad would not be covered by Title IX, but the new regulations say institutions “remain free” to apply misconduct policies for programs abroad if they so choose.
• If a Title IX coordinator receives multiple informal complaints of harassment against a single respondent, they will not be required to begin a formal complaint process. The department changed this requirement from the proposed rule, which sought to obligate Title IX coordinators to take action after receiving multiple informal reports against the same person.
• Colleges can no longer use a “single investigator model,” which has one official tasked with investigating, adjudicating and issuing disciplinary sanctions against respondents. The regulations instead require three separate officials to work through separate pieces of a single Title IX complaint process: a Title IX coordinator, who receives reports of sexual misconduct; an investigator, to gather facts and interview parties and witnesses; and a decision maker, to determine sanctions and remedies for parties.
• Colleges must train all personnel involved in the Title IX process and publish training materials on their websites. Training must involve review of the new rule’s definition of sexual harassment and the scope of the application of Title IX to college programs and activities, how to conduct a formal or informal process, and how to “serve impartially,” including avoidance of “prejudgment of the facts at issue, conflicts of interest, and bias.”
• Title IX processes may be conducted virtually, and staff must be trained on relevant technology to conduct remote investigations and hearings. Live hearings will be recorded, by transcript or audiovisual devises, and will be made available to parties and maintained in college records for at least seven years.
• Colleges must provide evidence related to allegations to parties and advisers at least 10 days prior to requiring a response, and parties will not be prohibited from speaking about the allegations. This means doing away with “gag orders.”
• Colleges are not obligated to follow a specific time frame for responding to reports of sexual misconduct. They are instead required to have “reasonably prompt” periods for carrying out each step in the Title IX complaint process.

These changes are very substantive and will require all universities to change the way they deal with Title IX issues. For questions, please contact the McDonald Hopkins attorney listed below.