After almost one-and-a-half years since issuing its original proposed rule, the U.S. Department of Education has issued final Title IX regulations effective August 14, 2020. Although analyzing the changes will take some time, what follows is a brief initial summary of some of the main changes in the final rule. Please join us for a complimentary webinar breaking down the new rule on Monday, May 11, 2020, at 11:30 a.m. We will be working on providing you more insights, as well, in the coming days.
- The new regulations narrow the definition of sexual harassment, much as initially proposed. The definition of hostile environment sexual harassment is now limited to unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies the person access to the program activity. The rule continues to reference sexual assault under the Clery Act, but now also includes dating violence, domestic violence, and stalking as defined in the Clery Act and the Violence Against Women Act in the definition of sexual harassment as well.
- A significant change is that the Department’s Office for Civil Rights (OCR) will now use a “deliberate indifference” standard in assessing complaints of mishandling of sexual misconduct by schools. This is the standard that is currently used in litigation for damages in federal courts and is a higher standard than that currently used by OCR under Title IX.
- The final rule narrows the individuals whose knowledge of sexual misconduct or a report thereof will be imputed to an educational institution in higher education. A K-12 school will still be deemed to have notice if sexual misconduct is reported to any employee of the K-12 school.
- The new regulation requires higher education institutions to hold live hearings in all cases and allow cross-examination by the parties. This rule was not extended to K-12 schools.
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The new regulations require schools to follow a proscribed grievance process that complies with various requirements stated in the Final Rule. Even if no formal complaint is filed, schools are still required to comply with various mandatory response obligations, which include offering and informing the complainant of supportive measures and following the appropriate grievance process prior to imposing discipline against a respondent.
- Under the proposed rule, postsecondary institutions would have been given a “safe harbor” against a finding of deliberate indifference if they did not receive a formal complaint and implemented supportive measures for the complainant. This “safe harbor” has been removed in the Final Rule.
- Explicit limits are now in place, as proposed, narrowing the scope of Title IX jurisdiction for schools to incidents that occur in their programs and activities.
As the rule includes many changes, both from the rule currently in effect and from the proposed rule, we have only provided an initial summary here. Among a number of other
resources available on the Department’s webpage regarding the release, you may find particularly useful a
comparison of key changes made to the final rule from those changes announced in the November 2018 proposed rule.
The final rules will take effect on August 14, 2020. Schools must update their policies and procedures promptly to address the requirements of the final rules. The rules for the first time proscribe specific investigation and response steps that schools must use, so it is important that grievance procedures reflect all changes. It is also essential for Title IX Coordinators, investigators, and any other staff (including, at the K-12 level, building administrators such as principals and deans) to be fully briefed on the changes and trained on how to implement them during the 2020-2021 school year. Stay tuned for more information about policy review and training opportunities that we will provide, including virtual options, soon.
