The U.S. Department of Education has released long-awaited proposed regulations concerning the implementation of Title IX of the Education Amendments of 1972 (“Title IX”), which prohibits sexual discrimination in educational programs and activities receiving federal funding. The Department promised formal regulations last fall, when it rescinded guidance from the prior administration and issued its own guidance. The notice of proposed regulations was published in the Federal Register on November 29, 2018, to start a sixty-day comment period [official Fed. Reg. publication]. The Department maintains that the significant changes seek to reduce the liability of educational institutions, bolster the due process rights of accused students and produce more reliable outcomes of disciplinary hearings.
Administrators with responsibility for Title IX program areas should review the proposed regulations in their entirety, particularly with respect to any elements that apply to a subset of institutions. We summarize key changes here.
The proposed regulations narrow the circumstances under which institutions must respond to sexual harassment (including sexual assault), and their liability when they do act. Consistent with the Supreme Court’s Title IX precedent in private civil lawsuits, the proposed administrative regulations state that schools with “actual knowledge” of sexual harassment, regarding an educational program or activity of the school, against a person in the United States, “must respond in a manner that is not deliberately indifferent.”
1. What is “sexual harassment”?
The proposed regulations define sexual harassment prohibited by Title IX as: (a) an employee “conditioning the provision of an aid, benefit or service of the [school] on an individual’s participation in unwelcome sexual conduct”; (b) “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity”; or (c) sexual assault, as defined in the Clery Act.
2. Who must receive a report to trigger action?
Institutions will no longer be held accountable if they “reasonably should know” of a sexual discrimination complaint and fail to investigate it. Now, schools will be responsible for investigating where school officials have “actual knowledge” of a complaint. To trigger action, a report has to be made to the Title IX Coordinator or to a school official “who has the authority to institute corrective measures” on behalf of the school. This obligation does not extend to every “responsible employee” obligated to notify the Title IX office when they receive a report of sexual misconduct, as the guidance makes clear “the mere ability or obligation to report does not qualify an employee…as one who has authority to institute corrective measures on the school’s behalf.”
3. What is a qualifying program or activity?
The sexual harassment incident must implicate a school’s education program or activity to activate a response. The Department notes the existing definition of “program or activity” in Title IX and existing regulations as “all of the operations of” a federal fund recipient, including “any academic, extracurricular, research, [or] occupational training.” To determine whether the subject matter of a sexual harassment complaint concerns an institution’s program or activity, schools should consider factors such as whether the harassment took place “in location or in a context where the recipient owned the premises; exercised oversight, supervision, or discipline; or funded, sponsored, promoted, or endorsed the event or circumstance.” The proposed regulations expressly limit Title IX protection to persons inside the United States.
4. What must a school do with complaints that do not meet the definition or occur outside their programs and activities?
The proposed regulations make clear that a school cannot pursue formal grievance procedures for allegations which, even if true, do not constitute sexual harassment, did not occur within the school’s education program or activity or took place outside the United States. The background and summary accompanying the proposed regulations clarifies that an institution still could initiate non-sexual harassment student conduct proceedings for complaints that fall outside of these parameters, and could opt to provide supportive measures to students making such reports (e.g., sexual harassment taking place on a term abroad).
As noted above, the proposed regulations state that institutions may not respond to qualifying allegations of sexual harassment (concerning a school’s educational program or activity in the United States) with deliberate indifference. Adopting Title IX judicial precedent, deliberate difference entails a “response to sexual harassment [that] is clearly unreasonable in light of the known circumstances.” As to the form of a school’s response, the proposed regulations are quite specific in many areas.
1. Emergency removal
The proposed regulations allow for removal of a respondent from an education program or activity on an emergency basis following a complaint of sexual harassment, but only if certain steps are taken. Before removal, a school must undertake an individualized safety and risk assessment, and conclude there is an immediate threat to its community members. Further, the respondent must be provided the opportunity to immediately challenge the removal. Employees have less protections than students, and can be placed on administrative leave pending an investigation; however, collective bargaining rights apply.
2. Supportive measures
The proposed regulations afford a complainant the decision whether to file a formal complaint or wait and do so at a later time. Schools should provide “supportive measures” both for complainants and accused students, regardless whether a formal complaint is filed. The proposed regulations define supportive measures as “appropriate,” “reasonably available” “individualized services” offered to a party. Such measures must be a) non-disciplinary and non-punitive; b) provided without a fee or charge; and c) designed to (i) restore or preserve access to an education program or activity without unreasonably burdening the other party; (ii) to protect the safety of all parties and the campus community; and (iii) deter sexual harassment. Examples of supportive measures include counseling, deadline extensions or course-related adjustments, campus escort services, mutual no-contact orders and changes in class schedules or housing.
3. Grievance procedures for formal complaints
Institutions are required to adopt grievance procedures for formal complaints. The proposed regulations are very detailed as to the form of these procedures, and require a quasi-judicial approach. They state that an institution cannot discriminate on the basis of sex in how it treats both a complainant and a respondent in resolving a formal complaint. Schools are admonished to treat parties equitably, which is defined as providing appropriate remedies to a complainant when sexual harassment allegations are sustained and providing respondents due process protections before imposing sanctions. Both inculpatory and exculpatory evidence must be considered.
In general, Title IX coordinators, investigators and decision-makers must be unbiased and trained using materials that may not rely on sex stereotypes. One person cannot fill more than one of these roles. Single-investigator models (typically where a single administrator or outside counsel conducts a sexual misconduct investigation, writes a report and issues findings) are expressly prohibited by the guidance. The proposed regulations do not establish a set timeframe for resolving allegations. Rather, they stipulate “reasonably prompt timeframes” for grievance procedures that allow for temporary delays or limited extensions of time for good cause, such as concurrent law enforcement activity, the absence of parties or witnesses or the need for disability accommodations.
Before a school can even start an investigation of a formal complaint, it must give written notice to the parties with information that includes a sufficiently detailed description of the incident, the identity of parties, the code of conduct sections violated and possible sanctions, notification of rights to review evidence and a statement that the respondent is presumed non-responsible. Following the notice, the respondent must be given sufficient time to prepare a response, prior to an initial interview.
Schools are mandated to investigate formal complaints unless the conduct alleged does not constitute sexual harassment or if the incident did not occur within the school’s program or activity or within the United States, in which case the formal complaint must be dismissed.
The parameters of an investigation are not defined, but the proposed regulations make clear the school—not either party—bears the burden of proof and of “gathering evidence sufficient to reach a determination regarding responsibility.” An institution must not impose gag orders on parties or restrict their ability to collect relevant evidence, and each party is to have equal opportunity to present witnesses and evidence. Parties are to receive written notice of the date, time, location, participants and purpose of all hearings, investigative interviews or other meetings, with sufficient time to prepare and participate, and advisors of choice are permitted.
The proposed regulations provide highly prescriptive discovery rights for the parties. Both parties have the right to inspect and review all of the evidence obtained as part of the investigation that is “directly related” to the allegations raised in the complaint, including evidence the institution does not intend to rely on in the hearing. Prior to the completion of the investigative report, each party and their advisor must receive the evidence in an electronic format that does not allow downloading or copying, and be given ten days to submit a written response. In drafting the final report, the investigator is required to consider the parties’ submissions. In addition, all evidence must be available to the parties during the hearing, including for cross-examination purposes. It is the clear intention of the rules to provide respondents with access to potentially exculpatory materials.
The investigation must conclude with a report fairly summarizing the relevant evidence. The investigative report must be provided to the parties for review and comment at least ten days before the hearing.
For colleges and universities, the proposed regulations mandate live hearings. One of the biggest changes stipulated in the rules is a co-equal right to cross-examination of opposing parties and witnesses. The parties would not conduct cross-examination themselves, but rather through their respective advisors, including attorneys—a format designed to “avoid any unnecessary trauma that could arise from personal confrontation between the complainant and the respondent.” Schools must permit cross-examination even if they limit the role of advisors in other respects. Because cross-examination by advisors is required, if a party is without an advisor, the school must provide that party “an advisor aligned with that party to conduct cross-examination.” Either party can request that cross-examination take place with the parties in separate rooms, enabled by technology. Cross-examination would have “rape-shield” limitations regarding a complainant’s sexual history except in two cases: (1) to prove someone other than the respondent committed the alleged conduct or (2) where it concerns specific incidents of the complainant’s sexual behavior with respect to the respondent and is used to show consent. The decision-maker must explain the rationale for not allowing questions it deems irrelevant to the advisor conducting cross-examination, and cannot rely on any statement of a party or witness unless that person submits to cross-examination at the hearing.
For responsibility determinations, the proposed regulations give institutions the option of utilizing a standard of proof of “clear and convincing evidence” (commonly understood to exceed a 75% likelihood) or the standard that had mandated under prior guidance, “preponderance of the evidence” (more than 50% likelihood). The latter standard is permitted only if the institution uses the same standard for other student code-of-conduct infractions that “carry the same maximum disciplinary sanction” as sexual harassment. The same standard must also be used for employees, including faculty, as for students.
Following the hearing, the proposed regulations would require a comprehensive written decision, provided to both parties simultaneously. The decision must not only identify the school policies allegedly violated, but include a detailed description of all procedural steps taken from the receipt of the complaint, findings of facts, application of the policies to the facts and a “statement of, and rationale for, the result as to each allegation.” This would include a decision about responsibility and sanctions imposed on the respondent, and any remedies provided to the complainant. Where there is a finding of responsibility, a school “must promptly implement remedies designed to help the complainant maintain equal access to the [school’s] educational programs, activities, benefits and opportunities.” In cases where the respondent is found not responsible, a school is not required to provide the complainant any remedies, though it can continue to provide supportive measures to either party. The written decision must explain any appellate rights available to the parties.
A school is not obligated to allow an appeal, but if provided, it must be available to both parties. Where there is a finding of responsibility, a complainant’s grounds for appeal are limited to contesting the remedies provided as not designed to restore access to a particular program or activity. The regulations state the complainant “is not entitled to a particular sanction against the respondent” as grounds for an appeal.
Following the submission of a timely appeal, a different, trained decision-maker than the one(s) who investigated the case or determined responsibility, must give written notice of appeal to the parties and an opportunity to submit a statement supporting or challenging the outcome. The decision-maker must issue a written decision containing a rationale for the result, and provide it simultaneously to each party.
4. Informal resolutions allowed
Under the proposed regulations, institutions may resolve matters, including allegations of sexual assault, through informal procedures such as mediation. An informal resolution process can be facilitated at any time before a determination of responsibility is reached, and does not require a full investigation and adjudication. However, a school must first give written notice of the allegations, the requirements of the informal process (including the circumstances under which a party would be precluded from resuming a formal complaint) and the potential consequences from participating (including what happens with records generated). Ultimately, both parties must voluntarily participate and provide written consent.
As mentioned above, the Department will take action against a school only when its response to sexual harassment is deliberate indifference. The proposed regulations offer a “safe-harbor” for reasonable efforts to comply with the rules. For example, the Department will not find “deliberate indifference” in a school’s response to a formal complaint of sexual discrimination if the school follows the procedures outlined in the regulations (including implementing any appropriate remedy as required). Where a formal complaint is not filed, the safe harbor is available to an institution if it offers and implements supportive measures intended to effectively restore or preserve access to an education program or activity for the complainant. It is important to recognize that any “safe-harbor” is operable vis-à-vis the Department, and not necessarily a private litigant. If an institution is found in violation of the regulations, the Department has made it clear it will not seek money damages, just remedial action.
Following the expiration of the sixty-day public comment period on January 28, 2019, the Department will undertake a review for an unspecified period of time (likely several months) before it issues the final regulations. There will also be judicial challenges to the Department’s intended regulatory changes. The final rules may look substantially different from those proposed at this time but, given the scope of the proposed regulations, there will undoubtedly be a significant impact on the operations of educational institutions. In some states, like New York and California, the proposed regulations may contradict or be difficult to reconcile with state law, including the permissibility of a clear and convincing evidence standard of proof and cross-examination rights.
It is important to undertake an analysis of the current policies and procedures for your institution, and to assess the impact on the proposed regulations. For example, institutions currently utilizing a “single-investigator” model would face substantial changes and related costs and training requirements. New mandates, such as those related to electronic discovery requirements and the provision of advisors for cross-examination purposes also generate costs for schools.
Counsel is available to assist in assessing the potential effects of the proposed regulatory guidance on your campus policies, procedures and programs, and in providing public comments.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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