An Early Read on the New Title IX Regulations

After a lengthy notice and comment process and much anticipation, new Title IX regulations were issued by the U.S. Department of Education on May 6, 2020. The regulations comprise approximately 25 pages, and the preamble to the regulations — through which the Department sought to address more than 124,000 public comments it received regarding the regulations — comprises more than 2,000 pages. Colleges and universities will be required to comply with the new regulations by Aug. 14, 2020.

The regulatory changes and preamble commentary issued by the Department require colleges and universities to begin planning now. On May 13, 2020, Holland & Knight Education Attorneys Jeff Nolan and Phil Catanzano provided an early read on the new regulations in a 90-minute webinar. A recording of the webinar is available on Holland & Knight's website.

The regulatory changes and preamble commentary issued by the Department are so extensive that Holland & Knight plans to issue a series of alerts regarding different topic areas addressed by the regulations. This first alert provides a high-level summary of the most crucial new requirements and some suggestions about initial response steps that institutions may wish to consider.

New Definition of Sexual Harassment

Under the new regulations, prohibited "sexual harassment" means conduct on the basis of sex that satisfies one or more of the following:

• an employee conditioning the provision of an aid, benefit or service on an individual's participation in unwelcome sexual conduct (i.e., quid pro quo)
• unwelcome conduct determined by a reasonable person to be so severe, pervasive and objectively offensive that it effectively denies a person equal access to an education program or activity (i.e., hostile environment)
• sexual assault (as defined by Clery Act), or "dating violence," "domestic violence" and "stalking" (as defined by Violence Against Women Act)

This will be a critical change for many institutions, insofar as it requires behavior to be severe and pervasive, as well as objectively offensive to a reasonable person.

The Department further narrowed the scope of when an institution must respond to allegations of potential sexual misconduct. Previously, the Department mandated a broad definition for who on an institution's campus was a "responsible employee" who had an obligation to report suspected sexual misconduct. Under the new regulations, an institution must respond when it has "actual knowledge." That is, notice to the Title IX Coordinator or "an official of the recipient who has authority to institute corrective measures" of "sexual harassment." The Department also redefined a school's "education program or activity" to include "locations, events, or circumstances over which the recipient exercised substantial control" over the respondent and the context in which the sexual harassment occurred, as well as clarifying that it must occur in the United States. Previously, the Department had construed this element broadly so that it impacted education-related activities in foreign countries via study abroad.

In an apparent attempt to address the fact that the new regulations narrow the application of Title IX, the Department emphasized in the lengthy preamble that "nothing in these final regulations prevents a [school] from addressing conduct that is outside the Department's jurisdiction" where the conduct: does not meet the Title IX definition of sexual harassment, occurred outside the school's education program or activity or occurred against a person outside the United States. If they wish, institutions can decide to continue to address such sexual misconduct through their policies, even if the Department does not require them to do so. Given this, institutions should decide now whether they wish to continue to prohibit and address such sexual misconduct outside the newly prescribed Title IX sexual harassment process, and if so, they should move forward to revise their Title IX and other policies and procedures to implement that decision.

New First Response/Supportive Measures Requirement

The new regulations also establish a first response protocol on the part of Title IX Coordinators that was not required previously. Specifically, if anyone (e.g., a reported survivor of sexual harassment, referred to as a "complainant" in the regulations, whether they wish to pursue a complaint or not, or a third-party reporter) reports sexual harassment through any method (including 24/7 web-based systems), the Title IX Coordinator or designee must:

• promptly contact the complainant to discuss the availability of supportive measures
• consider the complainant's wishes with respect to supportive measures
• inform the complainant of availability of supportive measures with or without filing a complaint
• explain to the complainant the process for filing a formal complaint

While many of these steps are followed by many institutions already, the regulations now make them mandatory.

The Department also makes a sharp distinction between the obligation to offer supportive measures, which must occur in response to any report, and the pursuit of an investigation, which can occur only based upon a "written complaint" signed by the complainant or the Title IX Coordinator. On the latter point, the Department makes clear that while it prefers that schools defer to a complainant's wishes as to whether to pursue an investigation, Title IX Coordinators may sign a complaint to initiate an investigation if they determine that not pursuing an investigation would be deliberately indifferent or that pursuing an investigation is necessary for community safety or similar reasons.

The supportive measures that must be offered are measures designed to: restore or preserve access to the school's education program or activity without unreasonably burdening the other party, protect the safety of all parties and the school's educational environment, and deter sexual harassment. Such measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, and increased security and monitoring of certain areas of the campus. They should be "non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge" to the complainant and, as applicable, to a respondent as well.

New Procedural Requirements

The new procedural requirements imposed by the regulations are extensive and will be addressed in more detail in a future Holland & Knight alert, but for purposes of this early read, salient features include:

• a presumption of innocence throughout the process, with the burden of proof on the school
• a prohibition of the single-investigator model in which the investigator makes a decision regarding responsibility without a hearing, instead requiring a decision-maker separate from the Title IX Coordinator or investigator
• a requirement to use either the clear and convincing evidence or preponderance of the evidence standard
• written notice of allegations and an equal opportunity for parties and their advisors to review the evidence
• an investigation report with certain elements
• live hearings in the higher education context
• an opportunity to test the credibility of parties and witnesses through cross-examination conducted by advisors (but not parties personally) at such hearings (which can be conducted either remotely or in person)
• broad anti-retaliation protections
• an equal opportunity for parties to appeal on specified grounds

Again, more detail about the new procedural requirements will be provided in a subsequent alert. In the meantime, institutions that make the decision to address sexual conduct that is outside the Department's jurisdiction (as referenced above) should decide now whether they 1) plan to address both categories of sexual misconduct (i.e., sexual misconduct that is covered under the new Title IX regulations and that which is not) through one procedure that complies with the new Title IX regulations or 2) whether they instead wish to utilize the flexibility afforded in these regulations and address non-Title IX sexual misconduct through different procedures.

Informal Resolution Options

In a departure from long-standing Department guidance, the new regulations permit institutions to facilitate the resolution of sexual assault reports through informal processes, within certain parameters. Specifically, a school may facilitate informal resolution of formal complaints of all forms of sexual harassment (with one exception noted below) if it provides parties with written notice of the allegations, the requirements of the informal resolution process and any consequences from participating (including information about records that will be maintained or could be shared), and if it obtains the parties' voluntary, written consent to the use of the informal resolution process.

One notable limitation to this general provision is that schools cannot offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student, given power differentials inherent in such circumstances.

Employment Issues

Although the Department has maintained relatively generic and uncontroversial regulations prohibiting sex discrimination at colleges and universities for many years, the new regulations break new ground by requiring that all of the procedural requirements referenced above, including those requiring hearings with live cross-examination by advisors in covered sexual harassment cases, apply to reports that employees have harassed other employees or have harassed students. This development, which will be discussed in more detail in a separate alert, will require substantial revisions of employee handbooks and agreements to ensure that institutions can follow this mandate while also not violating other employment laws, collective bargaining agreements or other contractual agreements.

New Training Requirements

The new regulations place a heavy emphasis on the importance of training. For example, one regulatory section states that schools "must ensure that Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, receive training on the definition of sexual harassment [], the scope of the [] education program or activity, how to conduct an investigation and grievance process including hearings, appeals, and informal resolution processes ... and how to serve impartially ... ." The regulations also require that "[a]ny materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, must not rely on sex stereotypes and must promote impartial investigations and adjudications of sexual harassment." Training for individuals serving in these roles must include information about:

• the definitions of prohibited conduct, including harassment
• how the processes — formal and informal — work
• how to conduct remote hearings
• how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest and bias

Importantly, training materials must be maintained and posted on the institution's website for seven years after they were presented, which makes the care that must be taken in training paramount. In response to numerous public comments on the topic, the Department emphasized that trauma-informed investigation approaches and training on such approaches could be used appropriately, so long as such approaches and training were conducted in a fair, neutral manner. This topic will also be covered in a future alert.

Next Steps

As outlined here, an early read of the new Title IX regulations indicates that schools will need to decide very soon how broadly they wish to prohibit sexual misconduct. Those schools that choose to prohibit sexual misconduct that falls outside the narrowed definition of sexual harassment for Title IX purposes must then decide whether they will utilize Title IX-compliant procedures or other procedures to address sexual misconduct that is not covered by Title IX. A school's decisions on those points will drive its next steps in the policy and procedure development process. Beyond that, schools will have to consider how best to adapt their current policies and procedures to the new requirements.

For assistance in complying with these obligations or other Title IX concerns, please contact the authors or other members of Holland & Knight's Education Team.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.