2020 Title IX Regulations

On May 19, 2020, the U.S. Department of Education published in the Federal Register final regulations governing campus sexual harassment and discrimination under Title IX. Institutions of higher education that receive federal funding are required to comply with the regulations, which will be go into effect on August 14 2020.   34 C.F.R., part 106.

Information about the New Title IX Regulations, the College’s Implementation Efforts, and the Scope of College Policy as of August 14, 2020 

The new Title IX regulations released by the Department of Education cover all aspects of institutional response to sexual harassment, including matters involving students and employees.  As noted in an email from the Office of the President on May 14, 2020, prior to the issuance of the new regulations, the College already had incorporated many of the now mandatory procedural measures into our policy and grievance process. The new regulations include numerous and detailed requirements that the Department believes are necessary to provide equitable and reasonably prompt responses to sexual harassment under Title IX.  

Highlighted below are selected regulatory items that will result in additional changes to our policy and process. To a significant extent, the new regulations mandate specific inclusion of policy and grievance resolution definitions and provisions; to a lesser extent, the new regulations permit the College to exercise discretion. 

1. DEFINITION/JURISDICTION: Actual Knowledge/Authority to Take Corrective Measures; Supportive Measures 

• MANDATORY: The College must identify employees who are “officials with authority to take corrective measures” for purposes of determining whether the College has “actual knowledge” of a report of sexual harassment. “Officials with authority” will include (by title) the Title IX Coordinator, Assistant Coordinator and all Deputy Coordinators, and specific staff members from Human Resources, Public Safety, Residence Life, Student Affairs, and Academic Affairs. Once it receives notification, the Title IX office will reach out to the student or employee identified in the report as the person alleged to have experienced sexual harassment for the purpose of providing information about supportive measures (defined below) and the grievance process.  It is important to note that no student or employee will be obligated to take any further action; the College will continue to honor the autonomy of the student or employee to make the choice to file a formal complaint. Receipt of a report obligates a response that is not “deliberately indifferent,” which means that the response cannot be “clearly unreasonable in light of the known circumstances.”  (The Department chose to adopt the “deliberate indifference” standard to match the standard in two U.S. Supreme Court decisions.)     
• MANDATORY: Supportive measures must be made available to both parties to restore or preserve access to the College’s education program or activity.  These measures cannot unreasonably burden either party or be disciplinary in nature. They can include counseling, academic or work-related accommodations, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of campus, and other similar measures. 
• DISCRETIONARY: The College’s “Mandatory Reporting Policy” will remain in effect (with necessary amendments).  Generally, that Policy states that all employees, except for those designated as confidential resources, are mandated reporters of student sexual harassment.  The decision to keep this Policy in effect reflects the College’s core values; when we become aware of incidents, among other steps, we offer support, process complaints as appropriate, assess for patterns and systemic issues over time, and implement remedial and preventive measures. With respect to supportive measures, the College will continue to offer them when it receives reports of conduct covered by our policy, including conduct that does not meet the narrow definitions in the new regulations for Title IX sexual harassment.  We will amend the description of these measures in our policy from “interim” to “supportive,” and we will amend our protocol for providing No-Contact Directives prior to the conclusion of a grievance process. 

2. DEFINITION/JURISDICTION: Prohibited Conduct Under Title IX 

• MANDATORY: The new regulations require all four of the following elements as prerequisites for implementing an institution’s Title IX response obligation: 1) actual knowledge (defined above); 2) sexual harassment (defined below); 3) conduct that occurs in a College education program or activity (defined below); and, 4) conduct that is against a person physically in the United States.   
• MANDATORY: Sexual Harassment is narrowly defined under the new regulations.  It is defined as conduct on the basis of sex that is either: Quid pro quo harassment, i.e., “an employee conditions the provision of an aid, benefit, or service offered by the institution on an individual’s participation in unwelcome sexual conduct”; Sexual harassment that is “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the [institution’s] education program or activity”; or, Sexual Assault as defined by the Clery Act; or Dating Violence, Domestic Violence, or Stalking as defined by the Violence Against Women Act (VAWA).  Retaliation, which is defined in the new regulations, also is prohibited. 
• MANDATORY: Education program or activity includes “locations, events, or circumstances over which the [institution] exercises substantial control over both the respondent and the context in which the sexual harassment occurs.”
• DISCRETIONARY: The new regulations give institutions discretion to respond, or not to respond, to conduct that is not covered by Title IX; they also give institutions choosing to respond discretion over how to respond.  The College will continue to respond to conduct it defines as “sexual harassment” by including not only the Title IX mandatory definitions and jurisdictional scope in our policy, but also the definitions and jurisdictional scope currently covered by our policy (e.g., conduct in a study-abroad setting, or conduct that is not in an education program or activity but that has clear negative impact on a person’s ability to access a program or activity). 

3. GENERAL REQUIREMENTS FOR FORMAL AND INFORMAL RESOLUTION PROCESS

• MANDATORY: The new regulations require a formal, written complaint as a condition for conducting a Title IX investigation, and that a formal complaint requires an investigation.  Similarly, the new regulations require a formal, written complaint before exploring an alternative or informal resolution.  An alternative, or informal, resolution cannot be an option when a student has filed a formal complaint against an employee. 
• DISCRETIONARY: In our response to non-Title IX sexual harassment that is and will continue to be covered by our Policy, the College will continue to provide grievance resolution options that consider relevant circumstances and known facts. While the College is not required by the regulations to offer an alternative/informal resolution process, the College will continue to include that option among those outlined in our policy, including for matters where a student has accused an employee.  The decision about whether an alternative resolution is appropriate will continue to be assessed on a case-by-case basis.     

4. ADVISOR OF CHOICE; ADVISOR ROLE DURING THE HEARING; LIVE HEARING; CROSS-EXAMINATION 

• MANDATORY: The new regulations permit the reporting and responding parties to choose any person (including an attorney) as their advisor during all or any part of the grievance process.  At a hearing to determine whether a party is “responsible” or “not responsible” for the claimed conduct, each party must be represented by an advisor to conduct cross-examination of witnesses and the other party. Upon request by a party, institutions must assign an advisor for the sole purpose of conducting cross-examination at the hearing because hearing officers, in reaching a conclusion, cannot consider any statement made during an investigation or hearing that is not also subject to cross-examination.
• MANDATORY: The new regulations require that institutions provide a “live hearing” during which “each party’s advisor asks the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.  Such cross-examination must be conducted directly, orally, and in real time.”  A decision-maker must decide whether each question is relevant and must provide an explanation for excluding a question.  Privileged information must be excluded unless the privilege is expressly waived.  No witness or party can be compelled to appear at a hearing or to answer questions (or to participate in an investigation). The statement of any party or witness who does not submit to cross-examination at the live hearing cannot be relied upon by a decision-maker in determining responsibility.  The live hearing may be conducted with parties located in separate spaces/rooms, or with all participants attending remotely, with technological support to comply with procedures outlined in the new regulations. 
• DISCRETIONARY: The College has minimal discretion on the topic of how to conduct live hearings and cross-examinations in Title IX matters. Where the College is obligated to assign an advisor, the College has discretion to choose that person.  Beyond the Title IX requirement that the advisor ask cross-examination questions directly to witnesses and the other party, the College will limit the role of the advisor during the investigation and hearing. 
• DISCRETIONARY: In non-Title IX matters covered by College policy, the College will continue to limit the role of the advisor; specifically, hearing officers will ask questions and the parties will have the opportunity to submit cross-examination questions through the chairperson (i.e., the chairperson, not the advisor, will ask witnesses and parties to answer submitted questions). Additionally, in non-Title IX matters covered by College policy, hearing officers will continue to be permitted to consider and weigh the relevance and significance of all evidence gathered during the investigative and hearing processes.

5. STANDARD OF EVIDENCE

• MANDATORY: The new regulations require that a College adopt the same standard of evidence irrespective of whether the respondent is a student or an employee.   
• DISCRETIONARY: The College has discretion to choose either the “preponderance of evidence” standard or the “clear and convincing” evidence standard.  The College will continue to use the “preponderance of evidence” standard when deciding whether policy has been violated and whether an appeal has merit.  The “preponderance of evidence” standard requires proving that it is more likely than not that the alleged sexual misconduct occurred (or that an appeal has merit).

6. TRAINING 

• MANDATORY: The new regulations require institutions to conduct training for key members of their Title IX teams, including investigators and decision-makers, on specific topics.  Materials used during training about the new regulations must be made publicly available on the College’s website.   
• DISCRETIONARY: The College has discretion to include additional topics in its training program.  The College’s existing training program already includes each of the mandated topics; however, we are in the process of incorporating new definitions and procedures that are now part of the regulations into our program.