September 20, 2021

Volume XI, Number 263

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September 20, 2021

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U.S. Department of Education Issues Final Title IX Regulations Reflecting Major Changes for Handling Campus Sexual Misconduct

On May 6, 2020, the U.S. Department of Education (ED) released its long-awaited final regulations revising requirements for educational institutions subject to Title IX of the Education Amendments Act of 1972 (Title IX). The final regulations, which in pre-publication format span over 2,000 pages, will be formally published in the Federal Register. Revised Title IX requirements under these final regulations will take effect August 14, 2020 and will require most institutions to make substantial changes to how they handle campus sexual misconduct.

The final regulations are the culmination of a years-long effort by ED to change the way schools respond to sexual harassment, including student-on-student sexual assault. ED’s proposed regulations, which were released in November 2018, elicited more than 120,000 public comments. The final regulations address nearly every phase of a school’s response to sexual misconduct and impose a much more formalized and legalistic process than has previously existed.

Requirements for Title IX Policies and Procedures

Under the final regulations, schools must publish policies that contain the regulations’ revised definition of sexual harassment and provide the name and contact information of the institution’s Title IX coordinator. The policies must also establish written, gender-neutral grievance procedures that:

  • Treat complainants and respondents equitably.
  • Require objective evaluation of all relevant evidence.
  • Require use of Title IX personnel who are free from bias and sufficiently trained on sex stereotypes, impartiality, relevance, and other issues.
  • State that respondents are presumed not responsible during the grievance process.
  • Provide reasonably prompt time frames for resolution of formal complaints, which may only be delayed temporarily and for good cause.
  • State the standard of evidence — either a preponderance or clear-and-convincing — and use the same standard for formal complaints against students and formal complaints against employees, including faculty.
  • Include a right to appeal on certain specified grounds.
  • Describe the range of supportive measures available to parties.
  • Prohibit use of information protected by privilege during the grievance process, unless the person holding the privilege has waived it.

Investigation and Hearing Procedures

At the outset of a sexual harassment investigation, the final regulations require that both parties receive written notice that include details of the alleged harassment, a statement of the presumption of innocence, notice that parties are entitled to advisors of their choice (which may include an attorney), the right to inspect and review certain evidence, and a statement that making false statements may subject a party to discipline. Parties must receive this notice and be given sufficient time to prepare before any initial interview.

The final regulations impose detailed requirements relating to gathering and reviewing evidence during an investigation. Once evidence is gathered, the school must prepare a detailed investigative report that is shared with the parties before any hearing.

At the postsecondary level, the final regulations require that institutions conduct a live hearing at which both parties must be allowed to present information to the decision-maker(s) who cannot be the Title IX coordinator or have been involved in the investigation. The live hearing must allow for cross-examination of the parties and witnesses by a party’s advisor. Parties themselves, however, may not conduct cross-examination. If a party does not have an advisor, the school must provide one free of charge. During the live hearing, the decision-maker(s) must rule on objections in real time. Decisions as to whether a particular question is relevant must be made before a party or witness is required to answer.

After the hearing, the decision-maker(s) must issue a written determination that states:

  • The portion of any policies violated.
  • A description of procedural steps taken by the school from receipt of the formal complaint through the determination (including the investigation, the evidence considered and the hearing itself).
  • Findings of fact.
  • Conclusions drawn from those facts.
  • A statement and rationale for the disposition of each alleged policy violation, including a determination regarding responsibility, any disciplinary sanctions and any remedies to the complainant.
  • A statement of appeal procedures.

Under the final regulations, appeals must be permitted on the basis of procedural irregularities, new evidence or conflict of interest. A school may, but is not required to, offer additional grounds for appeal as long as they are available to both parties. Any appeal must be decided by an individual not previously involved in the investigation or hearing process.

Additional Issues

The final regulations also address other issues, including the circumstances under which a school may allow for “informal resolution” of sexual harassment allegations, substantial recordkeeping requirements and provisions relating to retaliation.

© 2021 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 128
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About this Author

Sean R. Somermeyer Labor & Employment Faegre Drinker Biddle & Reath Minneapolis, MN
Partner

Sean Somermeyer represents employers—particularly colleges and universities—both in litigation and advising on complex issues. This includes defending clients in court, conducting internal investigations, responding to government investigations and counseling on difficult issues. Sean specializes in serving college, university and secondary education institutions and the unique needs and challenges they face.

Education Expertise

Sean advises and represents educational institutions on a wide range of matters, including:

  • Faculty tenure and...
612-766-7485
Amanda L. Shelby Labor & Employment Attorney Faegre Drinker Biddle & Reath Indianapolis, IN
Partner

Amanda Shelby is an advocate and advisor for employers. She partners with them inside and outside the courtroom on litigation, risk management, compliance issues and other employment-related matters. Amanda has worked with nonprofit organizations, higher education institutions, manufacturing businesses, and small and midsize businesses.

Employment Litigation

Amanda is an employment litigator with a national practice. She has defended employers in federal and state courts in more than 10 states throughout the country. Amanda represents employers at all stages of litigation...

317-237-1377
Jonathan Tarnow, Education and Government affairs lawyer, Drinker Biddle
Partner

Jonathan D. Tarnow advises clients on a wide range of education law matters involving the U.S. Department of Education, accrediting bodies, state agencies and other government regulators. He has extensive experience advising public, non-profit and proprietary institutions of higher education on the statutory and regulatory requirements of federal student financial aid programs under Title IV of the Higher Education Act, and has represented institutions in Title IV compliance reviews and audits, including administrative hearings and appeals related to...

(202) 354-1357
Sarah Pheasant, Education and Compliance Lawyer, Drinker Biddle
Associate

Sarah L. Pheasant advises clients on various aspects of education law and regulatory compliance, including issues pertaining to the Higher Education Act, Title IV federal student aid programs, state educational licensing laws and the accreditation of postsecondary institutions. She has helped to advise non-profit and for-profit educational institutions and private investors on complex transactions, including changes of ownership involving institutions of higher education.

Before joining Drinker Biddle, Sarah handled a diverse range of litigation,...

(202) 230-5675
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