The United States Department of Education released its new proposed Title IX regulations addressing sexual harassment (including sexual assault) today. The following sets out the highlights of the proposed draft rule.

​The proposed regulations, which effectively replace the 2011 Dear Colleague Letter, focus on the following: defining sexual harassment under Title IX; outlining those triggers that legally obligate a school to respond to allegations or incidences of sexual harassment; and clarifying school response procedures and requirements.

Defining Sexual Harassment

The proposed regulation would define sexual harassment, under 34 CFR 106.44(e)(1), to be limited to mean any of the following:

1. A school employee conditioning an educational benefit or service upon a person’s participation in unwelcome sexual conduct (often called quid pro quo harassment); or  
2. 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 school’s education program or activity; or
3. Sexual assault as defined in the Clery Act regulations [34 CFR 668.46(a)]

Actual Knowledge: Triggers That Legally Obligate a School to Respond

The proposed regulation works off of the actual knowledge model set forth in Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999) that requires a school to respond when three conditions are met:

1. The school has actual knowledge of sexual harassment (or allegations of sexual harassment).  A school has actual knowledge when notice of sexual harassment (or allegations) is provided to a school official who has authority to take corrective action.  When sexual harassment is reported to a Title IX Coordinator, the school will always be found to have actual knowledge.  But knowledge by someone who does not have authority to take corrective action does not constitute knowledge obligating the school to act.  This effectively eliminates the mandatory “responsible employee” concept articulated in the 2011 DCL.
2. The alleged harassment involves conduct that occurred within the school’s own education program or activity.  This is a fact-specific inquiry, taking into account whether the harassment occurred at a location or under circumstances where the school owned the premises, exercised oversight, supervision or discipline, or funded, sponsored, or endorsed the event or circumstances where the harassment occurred.  Notably, this does not create a bright-line distinction between on-campus and off-campus programs or activities – geography is not necessarily determinative.  On the other hand, sexual harassment of or by a school community member that has no relationship to the institution’s educational activities need not be investigated.
3. The alleged harassment is perpetrated against a person “in the United States.”  Whether this means the person harassed must physically be present in the United States, or perhaps something somewhat broader (e.g. a U.S. student studying abroad in Europe at a U.S. program) remains to be clarified.

Schools’ Response Procedures and Requirements

The proposed regulations require, under 34 CFR 106.44(a)-(b), that schools with actual knowledge of sexual harassment allegations must respond in a manner that is not deliberately indifferent.  Deliberately indifferent means “clearly unreasonable in light of the known circumstances.” Importantly, in order for a school to not be found “deliberately indifferent”, it is required to take all reports of sexual harassment seriously, regardless of whether the complainant files a formal complaint or not.  The proposed regulations define formal complaint as a document signed by a complainant or by the Title IX Coordinator alleging sexual harassment against a respondent about conduct within its education program or activity and requesting initiation of the school’s grievance procedures.

When a formal complaint is filed, schools are required to conduct an investigation.  If the school follows the grievance procedures set out in the regulations, then it has a safe harbor against a finding of deliberate indifference.  When no formal complaint is filed, the school is not required to investigate.  However, it must still respond.  The proposed regulations highlight the importance of offering supportive measures designed to preserve or restore access to the school’s educational program or activity.  Supportive measures include non-disciplinary and non-punitive individualized services, such as no-contact orders, changes in class schedules or dorm room assignments, leave of absence, or counseling.  Schools that implement supportive measures designed to effectively restore or preserve access to the school’s education program or activity to a complainant who does not wish to file a formal complaint also get a safe harbor against a finding of deliberate indifference.  At the time supportive measures are offered, the school must inform the complainant, in writing, of the right to file a formal complaint.

Another articulated focus of the new regulations is increased fairness and reliability of outcomes.  The proposed regulations, under 34 CFR 106.45(a)-b(3), require enhanced “due process” protections for all formal resolutions, including the following:

• Live Hearings – the proposed rule requires live hearings when investigating a formal complaint at both public and private institutions (but see optional informal resolution discussed below);
• Objective evaluation of all relevant evidence, including both inculpatory and exculpatory evidence, and provide that credibility determinations may not be based on a person’s status as a complainant, respondent, or witness;
• Presumption of non-responsibility throughout the  grievance procedure;
• Burden of proof and burden of gathering evidence must rest on the school, not the parties;
• Single-investigator models are prohibited – the regulations require a decision-maker at a hearing investigating a formal complaint separate from the Title IX Coordinator or investigator.

The proposed regulations also focus on evidence and access for the complainant and respondent.  The proposed regulations further require that schools:

• Provide both parties with an equal opportunity to be accompanied at all phases of the grievance procedure by an advisor of the party’s choice (who may be an attorney); the institution can proscribe the advisor’s role except in the instance of cross examination (see below);
• Provide an opportunity to test the credibility of the parties and witnesses through cross-examination (subject to “rape shield” protections regarding a complainant’s sexual history) which must be conducted by each party’s advisor (no personal confrontation is allowed);
• Prohibit consideration by the decision-maker of any evidence offered by a witness who fails to appear to be cross-examined;
• Provide to each party an advisor “aligned with that party” for cross examination purposes if the party does not have an advisor at the hearing;
• Provide both parties with an equal opportunity to present witnesses and other inculpatory and exculpatory evidence;
• Provide both parties with equal access to review all the evidence that the school investigator has collected that relates to the complaint (whether the institution intends to rely on it or not), and give each party ten days to respond regarding their review of the evidence prior to finalizing the investigative report; the draft rule explicitly notes this practice is consistent with FERPA;
• Provide a final investigative report to the parties at least ten days prior to the hearing;
• Provide both parties with written notice of allegations and written notice of any interview, meeting, or hearing at which a party is invited or expected to participate;
• Include reasonably prompt timeframes for conclusion of the grievance process, including reasonably prompt timeframes for filing and resolving appeals, if the school offers an appeal.  The regulations allow for temporary delays of the grievance process or the limited extension of timeframes for good cause with written notice to both parties of the delay or extension and the reasons for the action.  (Examples of considerations for “good cause” may include absence of the parties or witnesses, concurrent law enforcement activity, or the need for language assistance or accommodation of disabilities.)

After the decision-maker makes a determination regarding responsibility at the close of the investigation, under 34 CFR 106.45(b)(4), schools are required to send a written determination to both parties explaining, for each allegation, whether the respondent is responsible or not responsible.  The written determination must include facts and evidence on which the conclusion is based.  The determination must be made by applying either the preponderance of evidence standard or the clear and convincing standard, though if the school uses a clear and convincing standard to adjudicate other forms of misconduct with similar ranges of sanctions, clear and convincing must be used for Title IX proceedings as well.

Once a determination is made, under 34 CFR 106.45(b)(5), if a school chooses to offer an appeal, it must be offered to both parties.  Each party must be given the opportunity to submit written arguments for or against the outcome.  The appeal decision-maker cannot be the same person who served as the Title IX Coordinator, investigator, or decision-maker.

The proposed regulations also provide for informal resolution, under 34 CFR 106.45(b)(6).  At any time prior to reaching a determination regarding responsibility, a school may facilitate an informal resolution process (mediation, restorative justice, or other models of alternative dispute resolution).  In order to pursue an informal resolution, both parties must, after being fully informed, provide their voluntary, written consent to the process.

The proposed regulations will be addressed through notice-and-comment rulemaking, which will be open for public comment for sixty days.