The Department of Education Issues a Game-Changing Title IX Final Rule

On May 6, U.S. Secretary of Education, Betsy DeVos, signed legislation aimed at protecting survivors of sexual harassment and providing due process for those accused. Amongst its many provisions include:

·        K-12 schools must respond whenever any employee has noticed sexual harassment, including allegations of sexual harassment. Once the school is on notice of a potential claim, it triggers the school’s response obligations.

·        The final rule defines sexual harassment broadly: quid pro quo harassment by a school employee, unwelcome conduct that is offensive and denies equal educational access, and any sexual assault, dating violence, domestic violence, or stalking.

·        Quid pro quo harassment and violence against women harassment will not be evaluated for severity, pervasiveness, offensiveness, or denial of equal education access. In a sense, there is a zero-tolerance policy.

·        The final rule added language identifying First Amendment protections to foster learning, teaching, free speech, and academic freedom. Even if the speech is deemed offensive.

·        What’s considered a school activity is very broad. Any program or activity that includes locations, events, or circumstances over which the schools exercise substantial control, including student organizations such as fraternities and sorority houses. The school is also responsible for all educational program activities, whether they occur on campus or off campus.

·        The final rule expands a school’s obligation to ensure its educational community knows how to report to the Title IX coordinator – schools will be required to prominently display on their websites the required contact information of their Title IX coordinators, which includes their telephone number and email address. It does not prohibit the use of hotlines that may be done online.

·        In terms of case management, the rule discusses mandatory response obligations to guard against “deliberately indifferent responses.” As long as the school’s response is not deemed unreasonable, you’ll have met the standard. Schools must follow a grievance process before they impose any disciplinary actions. Of course, if the allegation or complaint does not meet the definition of sexual harassment in the final rule, the school should still handle the matter appropriately under the school’s code of conduct.

·        The rule requires schools to have “supportive measures” for complainants that are individualized, nonpunitive, nondisciplinary, and not unreasonably burdensome to the other party. Again, the rule allows the school’s discretion in these services so long as they are not found to be unreasonable.

·        The final rule requires a consistent, transparent grievance process for resolving formal complaints of sexual harassment. The rules surrounding the mandated grievance process are familiar. Equitable treatment, equitable remedies, equitable evaluations, nonbiased investigators and decision makers, training, appeal procedures, and confidentiality requirements. Interestingly, it allows the school to choose whether they use a preponderance of the evidence standard (think 51%) or the clearing convincing evidence standard (think 66-75%).

·        Investigations – the final rule requires an investigation and notice to the parties. The burden of gathering evidence and burden of proof remains on the schools, not the parties. The schools must provide equal opportunity and not restrict the ability of parties to discuss the allegations or gather evidence (no gag orders). The parties have the opportunity to select an adviser of their choice who may be an attorney. There are other requirements surrounding notice, timing. Interestingly, while the school must dismiss allegations of conduct that do not meet the rule’s definition of sexual harassment, it does not preclude the school from addressing the conduct in any manner the school deems appropriate. There are also provisions protecting medical, psychological, and other treatment records.

·        Hearings – the rule adds the opportunity to have “live hearing with cross-examination” for post-secondary institutions. They are optional for K-12 schools.

As with any new legislation, it will create its critics and lawsuits. However, the lawyer in me doesn’t see it being overturned, especially with the current Supreme Court. If your school does not already have a Campus Reporting and case management tools I recommend Campus Confidential, where I am on the Board of Advisors.