AGB Policy Alert: Final Title IX Regulations on Sexual Harassment

By AGB May 22, 2020 AGB Alerts

In early May, the U.S. Department of Education (ED) issued a new rule on Title IX of the Education Amendments of 1972. Spanning roughly 2,000 pages, these regulations are expected to have far-reaching implications for colleges and universities due to their subject matter, level of complexity, and financial requirements. The rule will take effect Aug. 14, 2020.

There are a number of changes in the new rule that boards and senior leaders should be aware of and discuss. AGB recommends that boards speak with university counsel and administrators to gain more detailed insight into specific requirements that may affect their institutions.

Major provisions

New definition of sexual harassment

The regulations define “sexual harassment” as conduct that meets one of three tests:

  • A school employee conditioning the provision of aid, benefits, or services on an individual’s participation in unwelcome sexual conduct;
  • Unwelcome conduct that a reasonable person would determine is so severe, persuasive, and objectively offensive that it effectively denies a person equal access to the recipient’s (meaning an institution’s) education program or activity; or
  • Sexual assault (as defined in the Cleary Act) or dating violence, domestic violence, or stalking (as defined in the Violence Against Women Act).

Expectations to investigate
The regulations require institutions to respond to sexual harassment when it occurs in their education programs or activities in the United States, including locations, events, or circumstances over which an institution exercised substantial control over both the alleged perpetrator and the context in which harassment occurred. This also includes a building owned or controlled by a student organization that is officially recognized by an institution.

The rule also requires institutions to provide a timely response to an allegation of sexual harassment when such an allegation is provided to an institution’s Title IX coordinator or to any official of the institution who has authority to institute corrective measures on behalf of the institution.

Evidentiary standard
In adjudicating complaints, the regulations allow institutions to use either the “preponderance of evidence” standard or the “clear and convincing evidence” standard, so long as institutions apply the same standard of evidence for formal complaints against students as for formal complaints against employees.

Grievance process and cross-examination
The regulations specify a grievance process that institutions must carry out when they receive a formal complaint. It is important to note that this process includes a requirement that institutions provide both parties an equal opportunity to inspect and review evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint. While institutions must maintain compliance with the Family Education Rights Privacy Act (FERPA), the regulatory preamble specifically states that if “the enforcement of FERPA would interfere with the primary purpose of Title IX to eliminate sex-based discrimination in schools, the requirements of Title IX override any conflicting FERPA provisions.” Additionally, the regulations specifically prohibit the grievance process from requiring the submission of any evidence that is protected under legally recognized privilege (such as medical records covered by the Health Insurance Portability and Accountability Act of 1996, commonly known as HIPAA).

Part of the formal complaint process requires that institutions implement a live hearing with cross-examination, which may be conducted with the parties in separate rooms or virtually. Parties involved are entitled to an advisor, which may be a lawyer, and if a party does not have an advisor, institutions are required to provide one. Cross-examinations must be conducted by the parties’ advisors, not the parties themselves.

Further, at the conclusion of the grievance process, a decision maker must issue a written determination regarding responsibility. The decision maker may not be the same individual as the Title IX coordinator or the investigator.

Mediation, Resolution, and Appeal
The regulations allow institutions to use informal resolution procedures with the voluntary, informed, and written consent of both parties. Institutions may not require that individuals waive their right to a formal complaint as a condition of attendance or employment. In addition, an institution may not offer informal resolution unless a formal complaint is filed, must give any party the right to withdraw from informal resolution and resume the grievance process, and must not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student.

In addition, institutions must offer both parties the opportunity to appeal a final determination or the institution’s dismissal of a formal complaint or any allegations therein. The regulations specify permissible bases for an appeal (e.g., procedural irregularities, new evidence, conflicts of interest).

Background and Context

This is the first time that ED has issued regulations on sexual harassment as a form of sex discrimination under Title IX. Previously, ED issued nonbinding guidance on sexual harassment, most notably in a 2011 “Dear Colleague letter.” In September 2017, ED rescinded that guidance and, shortly thereafter, issued a question and answer document that has served as interim guidance. In November 2018, ED published a Notice of Proposed Rulemaking (NPRM) on which it sought public comment. ED received more than 124,000 comments on the NPRM, including a letter from AGB. Then, on May 6, ED published the final Title IX regulations.

While AGB is supportive of some of the changes above, such as the flexibility for informal resolution procedures, we have serious concerns that the regulations require institutions to establish a quasi-judicial system, which is not in the interest of students and for which institutions lack the resources, expertise, and infrastructure. Several groups, including the American Civil Liberties Union, have already filed a lawsuit against ED, stating that the regulations do not serve the objectives of Title IX.

Additionally, AGB is extremely concerned about the Aug. 14 implementation date. With institutions focused on responding to the COVID-19 crisis, it will be difficult for them to implement these new regulations. AGB and other associations and institutions are asking ED to reconsider this short timeframe.

That said, board members should understand that institutions are working toward the Aug. 14 implementation in the event that the date does not change. Senior administrators will seek board leadership when it comes to determining financial resources for compliance (e.g., hiring more Title IX employees, training staff on new policies/practices, developing materials and information and sharing them widely, etc.).

Questions for Boards and Administrators

  • Does the board discuss sexual misconduct and related issues with the president and institutional leaders?
  • Has the institution allocated sufficient resources and staff to meet the regulations’ new requirements?
  • How will the full board, or a committee of the board, receive information about issues related to sexual misconduct? Is engagement of the full board appropriate, or should the responsibility be delegated to an existing committee? If a committee, which one? Under what circumstances will institutional leaders keep the committee (or full board) apprised of relevant issues? Or, when and how will the board committee keep the full board apprised of pertinent information and recommendations?
  • How often is the institution reviewing the efficacy of relevant policies, and who is responsible for doing so? This is especially important now as state law may have different or additional components to the aforementioned federal guidelines.

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