The definition of sexual harassment, drawn from U.S. Supreme Court precedent, is narrower than prior guidance indicated. The regulations define sexual harassment to mean 1) conditioning the provision aid, benefit or service on participation in unwelcome sexual conduct; 2) unwelcome sexual conduct that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the education program or activity; or 3) sexual assault as defined by the federal law governing campus safety, the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act).
A school must take action to satisfy its Title IX obligations when three conditions are present. First, a school official with authority to take corrective action must receive actual notice of an alleged violation. Constructive notice, based on inferences about what a school should reasonably know, would no longer be sufficient to trigger Title IX responsibilities. Second, the alleged harassment must have occurred within the school's own program or activity on or off campus. Prior guidance focused instead on the impact of the harassment on the school's students or employees. The proposed regulations are unclear about the circumstances in which private, off-campus housing, e.g., Greek residences or other theme housing, would be covered. Third, the alleged harassment must have been perpetrated against a person in the U.S., which excludes study abroad programs.
The regulations also distinguish between reports and formal complaints. Under the prior guidance, institutions were broadly required to execute their policies upon any form of notice of sexual misconduct, absent extraordinary circumstances. Under the proposed regulations, schools must investigate only those reports by accusers who elect to sign written allegations satisfying the three conditions for triggering Title IX enforcement. If an individual opts not to file a formal, written complaint, schools must review and offer "supportive measures" whenever there is a report of sexual harassment. Supportive measures, which closely resemble the notion of "interim measures" under prior guidance, must be designed to preserve or restore access to the school's education program or activity, but may not unduly burden one party over another. Importantly, for these informal allegations, a full investigation is not required. However, the proposed regulations do still allow the Title IX coordinator to file a formal complaint whenever there is a suspected serial offender. To avoid hurried investigations that might sacrifice fairness and accuracy, the Department's regulations would permit schools to extend the 60-day grievance process for reasonable grounds (e.g., witness unavailability). Mediation and other means of resolving complaints informally, without an adjudication, are expressly permitted by the regulations if schools give the parties detailed information about the process and its consequences.
The Department proposes to judge a school's response to sexual harassment according to the same standard applied in civil actions under Title IX — "deliberate indifference." Pursuant to that standard, a school has violated Title IX only if it responded with deliberate indifference to actual notice of a sexual harassment complaint. The proposed standard is much more deferential to the judgment of schools than the much lower "reasonableness" standard applied by the earlier guidance.
The Department previously interpreted Title IX as requiring a "preponderance of the evidence" standard for proving sexual harassment on campus. The regulations would give schools a choice: preponderance of the evidence or the significantly higher standard of clear and convincing evidence. However, if they choose the lower standard, the school must use it for other conduct code violations with similar sanctions, and for both students and employees.
The regulations add multiple due process protections for the accused "respondent," beginning with an express presumption of innocence throughout the grievance process, and with the burden of proof resting on the school, not the parties. Defenders of the accused say this change levels the playing field, whereas critics object because, among other things, the school has no subpoena power or other authority to compel the production of witnesses or records. The regulations would prohibit the "single-investigator model," instead requiring a decision maker separate from the investigator or Title IX coordinator to decide formal complaints.
For higher education, hearings would be mandatory, and the parties would be entitled to live viewing of witnesses and cross-examination of the witnesses by advisors of their choice, in person or in separate rooms through the use of videoconferencing, subject to rape shield protections. The accused have long advocated for cross-examination, whereas critics raise concerns about transforming an educational institution's disciplinary process into a courtroom drama without the safeguards of rules of procedure, rules of evidence or judicial oversight. Critics worry that justice will go to the party who can hire the best lawyer and that the cross-examination requirement will discourage accusers from bringing formal complaints.
The Department proposed the regulations on Nov. 16, 2018. They are subject to public comment for 60 days after their formal publication in the Federal Register. If you would like more information about the proposed regulations or compliance with Title IX, please contact the authors or your attorney at Holland & Knight.
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