How the Proposed Title IX Regulations Will Impact Schools

Until the proposal is final, schools and universities remain in a state of flux

Schools and universities remain in a state of flux with respect to their compliance obligations under Title IX of the Education Amendments of 1972. As they navigate the evolving Title IX requirements related to peer-to-peer sexual misconduct, they must continue to investigate student complaints and defend themselves in related litigation. And responding to the associated media coverage only contributes to the turmoil.

As Title IX evolves, sexual misconduct continues to occur far too frequently on college campuses. In November 2018, in an effort to clarify how recipient schools and institutions covered by Title IX must respond to incidents of sexual misconduct, Secretary of Education Betsy DeVos released proposed regulations to Title IX. Before unpacking the proposed regulations, however, it is helpful to understand Title IX’s history.

Untangling Title IX’s History

In 1972, President Nixon signed Title IX into law: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

While the law is generally known for requiring schools to provide equal athletic opportunities to women and girls, the Supreme Court interpreted Title IX to prohibit sexual misconduct at schools.

In 1992, the Court followed precedent that applied to Title VII of the Civil Rights Act of 1964 and held that a teacher discriminates on the basis of sex within the meaning of Title IX when they sexually harass or abuse a student.

In 1998, the Court found that schools may be liable for sexual harassment and abuse by a teacher if the institution is on actual notice of the harassment and displays deliberate indifference to it.

In 1999, the Court expanded its precedent and ruled that a school may be liable for peer-on-peer harassment where it “acts with deliberate indifference to known acts of harassment in its programs or activities.”

In 2011, the Office for Civil Rights under President Obama issued a “Dear Colleague” letter and a subsequent guidance document that required schools to follow specific procedures when resolving complaints of peer-to-peer sexual assault. With a fear of losing federal funding, schools modified their Title IX policies and procedures to comply with the Title IX requirements as interpreted by the Obama administration.

DeVos’ Proposed Changes

Almost immediately after President Donald Trump’s inauguration, Secretary DeVos rescinded the 2011 Dear Colleague letter. She subsequently issued proposed amended regulations to Title IX, which included the following measures:

  • The person accused of sexual misconduct must be guaranteed the right to cross-examine the accuser. The Obama-era guidance “strongly” discouraged direct cross-examination due to its potential to re-traumatize victims and perpetuate a hostile environment.
  • Schools must use a narrow definition of the term “sexual harassment.” The Obama administration defined sexual harassment as “unwelcome conduct of a sexual nature.” The new rules define it as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”
  • Schools would have the option of using a higher standard of proof. The Obama-era guidance required schools to adopt a “preponderance of the evidence” standard. The new rules would allow colleges to apply either the preponderance of the evidence standard or the higher “clear and convincing evidence” standard.
  • Schools may require that formal complaints be made to specific employees (e.g., requiring that complaints be made to only the Title IX coordinator). The Obama-era guidance required all responsible employees, which included anybody to whom a student could reasonably believe has the authority to take action to redress sexual violence or has been given the duty of reporting incidents of sexual violence to the Title IX coordinator, to report incidents of sexual violence.
  • Schools would not be required to address off-campus misconduct if it did not occur in an education program or activity. The Obama-era guidance stated that “[e]ven if the misconduct did not occur in the context of an education program or activity, a school must consider the effects of the off-campus misconduct when evaluating whether there is a hostile environment on campus or in an off-campus education program or activity because students often experience the continuing effects of off-campus sexual violence while at school or in an off-campus education program or activity.”

The proposed rules underwent a 60-day public comment period during which more than 100,000 comments were submitted.

Title IX Going Forward

The Department of Education (DOE) will review all submitted comments and respond to all substantive comments before publishing the final rule. The review may take a few months to a year. Many schools will not officially change their Title IX policies and procedures until the DOE publishes its final rule. While schools wait for the final rule, they should continue to implement fair and effective processes for addressing sexual misconduct when it occurs and promote a culture of respect and inclusion.

LaLonnie Gray is an associate at Fisher Phillips' Denver office. She practices at the intersection of employment law and higher education, counseling clients in the day-to-day employment issues and defending clients against employee claims.

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