On Wednesday, May 6, 2020, the United States Department of Education announced significant changes to the rules governing complaints of sexual assault and sexual harassment in educational settings.  The new rules modify investigations and complaints under Title IX – which governs claims of discrimination in any federally funded education program or activity.  Notably, the new rules allow universities to raise the standard of proof for determining whether an individual has suffered a sex-based offense and allow for cross-examinations at formal hearings.  The new rules will take effect on August 14, 2020. Important provisions of the new rules are summarized below.

  1. Notice

Institutions are required to take action in accordance with Title IX once they receive notice of any allegation involving sexual harassment.  K-12 schools are required to take action when any employee has notice of allegations of sexual harassment.  Postsecondary institutions are allowed to designate certain employees to whom allegations of sexual misconduct are to be made.  Notice to such individuals would trigger an institution’s duty to take action.

  1. Sexual Harassment

Sexual harassment means conduct on the basis of sex that satisfies one or more following:

  • “Quid pro quo” activity in which a school employee conditions education benefits on participation in an unwanted sexual conduct; or
  • Unwelcome conduct that a reasonable person would determine is so severe, pervasive and objectively offensive that it effectively denied a person equal access to the school’s education program or activity; or
  • Sexual assault, dating violence, domestic violence or stalking.

The Title IX sexual harassment rules apply to allegations in a school’s education program or activity, against a person in the United States. An education program or activity includes locations, events, or circumstances over which the institution has control over the accused and the place where the alleged sexual harassment occurs. It also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution.

  1. Reporting

Schools are required to designate an individual to manage their Title IX programs and to serve as a contact person for Title IX-related matters. This person should be named the “Title IX Coordinator.” The Title IX coordinator should have readily available contact information that is produced to all applicants for admission and employment, and parents or legal guardians of elementary and secondary school students.

  1. Mandatory Response Obligations

An institution must respond to Title IX sexual harassment in a manner that is not “deliberately indifferent,” or clearly unreasonable in light of the known circumstances. A school’s mandatory response must include supportive measures for the complainant regardless of whether a formal complaint is filed. The process includes detailed explanations of how a formal complaint can be filed.  Institutions must also follow a grievance process that complies with the new rules.

  1. Hearings and Grievance Process

Postsecondary institutions are required to provide a grievance process that includes a live hearing. At the live hearing, each party’s advisor is allowed to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. The advisor may be an attorney, but it is not required. If a party does not have an advisor present at the live hearing, the school must provide one without charge.

The new rules require that an institution’s grievance process state whether the standard of evidence to be used to determine responsibility is the preponderance of the evidence standard or the clear and convincing evidence standard.  The same standard must be applied for formal complaints against students or any member of a school’s faculty or staff.

A school may choose to offer informal resolution options in lieu of the formal hearing if both parties give voluntary, informed, written consent.

Takeaway

The new rules bolster protections for accused students and employees, and alleviate some of the burdens that were previously placed on educational institutions. Institutions will no longer have to designate most employees as “mandatory reporters,” and can instead rely on the Title IX Coordinator to serve as the point person for compliance.  While college and universities are responsible for sexual misconduct that occurs during off-campus educational activities, they are not responsible for events that occur in off-campus apartments or during study abroad. Significantly, educational institutions are also liable for actions that occur in fraternities or sororities that are officially recognized by the college or university.

*   *   *

If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP