9 for IX: Nine Essential Questions Answered About the New Title IX

Franczek P.C.
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Franczek P.C.

As we discussed in our blog post on May 6, 2020, the U.S. Department of Education issued on that day its long-awaited Title IX regulations, raising panic and concern amongst stakeholders on every part of the Title IX spectrum. Our Title IX Insights blog team provided some initial thoughts on the new regulations during a webinar on May 11; you can watch the recording here. This blog post answers some of the questions we raised during the webinar as well as some questions we received from the audience but did not have time to address. For more on the details about the final rule, check out the webinar recording and stay tuned to our blog for more insights to come.

What the heck is the Gebser/Davis Framework, and will it make it harder to find that a school violated Title IX?

The rules include a modified or adapted “Gebser/Davis framework,” named after the U.S. Supreme Court cases Gebser v. Lago Vista Independent School District and Davis v. Monroe County Board of Education, two cases from the late 1990s that set forth the liability standards for lawsuits for money damages under Title IX and contain a number of principles and terms that will become second nature to us in the coming months and years because they have been incorporated into the final rule. Generally, the Gebser/Davis standards are more stringent than the standards OCR has been using since 2011. So there certainly may be some truth to the claims of opponents to the rule that schools will find it easier under these rules to survive complaints that they mishandled sexual misconducts complaints by OCR. Notably, however, because the Department’s modifications to the Gebser/Davis standards in the final regulations are more stringent than those standards in the caselaw, we may see the opposite from courts; a court that defers to the new rules may expect more from schools than they did before under the modified rules. This could actually lower the standard of liability for schools in at least some circumstances.

What do these rules really mean for my institution, and how do I get key stakeholders and decisionmakers on board to do the work that must be done before August 14?

We also discussed some language that those of you who are in the Title IX administrative realm can use to describe the Title IX regulations to stakeholders within your institutions: “By August 14 our institution must implement and train relevant staff, on extremely detailed, thorough Title IX regulations, that are heavily focused on principles of fairness, and include a staggering number of details, such as new definitions of key terms, specific procedures for handling complaints, notice and recordkeeping requirements, and training mandates.” We can’t understate how important it will be to impress upon stakeholders and decisionmakers at your school, college, or university the importance and magnitude of the changes that this regulation brings to obtain the necessary buy‑in you need to make changes to policies and practices and provide training that is needed before August 14 and beyond.

Do I even need to worry about these rules? Won’t someone just sue to delay or overturn them?

Yes, we know that some organizations have already threatened lawsuits against the Department of Education. Opponents of the rule changes almost certainly will seek to delay the implementation of the rule. However, we have no precedent suggesting that a lawsuit will lead to any delay in the rules at this time. Courts give significant deference to federal government agencies in their rulemaking, and we expect a similar approach here. Whatever you have to say about the 2,082 pages of documents from the Department, you’d be hard-pressed to stay they aren’t thorough, and that will almost certainly weigh on a court deciding any lawsuit. As the old saying goes, plan for the worst and pray for the best. That is the approach we recommend that all educational institutions take now.

But wait, August 14 is not enough time for me to figure all of this out. What gives?

Interestingly enough, the head of OCR, Assistant Secretary Kenneth Marcus, said that the August 14 date was “an unusually long period of time” for schools to comply with a new rule. That might be true, but no rule of this magnitude has ever been released during a global pandemic that has shut down wide swaths of the country. Since the coronavirus disease 2019 (COVID-19) shutdown began, OCR has issued letters of notification (LONs) for new cases that do not even include data requests. In so doing, OCR has explicitly recognized the challenges schools are facing right now in continuing their normal business during the COVID-19 era. So, it’s strange, to say the least, that the same agency would consider three months an appropriate amount of time for a potentially wholesale reconfiguration of schools’ sexual misconduct policies, procedures, and practices. Again, however, that is the timeline that we were given, so we have to work with it.

Our buildings are in the process of updating student handbooks for next school year which contain information on Title IX. Considering these new regulations go into effect on August 14, 2020, what information would you recommend that we do or do not include in the student handbook?

It’s going to be painful for me to say this, but if your school is heading to the presses on handbooks you either need to make sure they are updated to address the new rule or be comfortable with the fact that your handbooks may be out of date almost as soon as you start. We highly recommend making even just the most basic necessary changes in the handbook before going to press. Even if you later provide an update, having outdated information in your handbook could lead to confusion and complaints from students, parents, and other community members. Contact your legal counsel to determine the bare minimum changes that can be made and go from there.

What are your thoughts on institutions with physical campuses outside of the U.S.?

Note that in the definition of harassment, conduct now has to be in the U.S. to be covered by Title IX. The plain language of the rules suggests that any conduct outside of the U.S. would not be covered by Title IX. But this is one of those areas where you might go through the technical process of “dismissing” under Title IX but then pursue the complaint through your “sexual harassment” or other code of conduct policy. Unless a state law or your policy requires it, however, the rules say you are off the hook for extraterritorial conduct.

What about preliminary determinations by Title IX Coordinator or investigator, is that allowed?

According to the rules, although the Title IX Coordinator and investigator must be different individuals from the decisionmaker, nothing in the final regulations requires the Title IX Coordinator to be an individual different from the investigator. The rules also do not prohibit Title IX Coordinators from offering recommendations regarding responsibility to the decisionmaker for consideration. However, the final rules require the ultimate determination regarding responsibility to be reached by a decisionmaker who did not participate in the case as an investigator or Title IX Coordinator. We also do not recommend that the Title IX Coordinator serve as the decisionmaker and are available to discuss the reasons why.

Thoughts on the formal appeal right given in situations where the Title IX Coordinator dismisses the complaint as not satisfying the Title IX complaint standards?

The new Title IX rules now require appeals to be made available to both parties in a number of cases, including where a complaint or allegation is dismissed because it does not meet the new standards for “sexual harassment.” There are two types of dismissals (mandatory and discretionary), and appeals are available to both.

The rules explain that if a recipient dismisses a complaint or allegation in error, such as where it incorrectly decides that the underlying alleged incident did not occur in the institution’s education program or activity leading to mandatory dismissal for Title IX purposes, or the recipient’s discretionary dismissal was based on incorrect facts, “the parties should have the opportunity to challenge the recipient’s dismissal decision so that the recipient may correct the error and avoid inaccurately dismissing a formal complaint that needs to be resolved in order to identify and remedy Title IX sexual harassment.” This suggests that the appeal will consider, for dismissals, the propriety of the dismissal decision based on either the law or alleged facts.

The regulations require the decisionmaker on appeal to be a different person than the investigator and the person who made the initial decision. Why? In part, they say, because the decisionmaker on appeal is asked to review the determination reached by the original decisionmaker, including based on any claim of bias or conflict of interest on the part of the decisionmaker. This person must be trained and, again, we do not recommend that it be the Title IX Coordinator.

To what extent do you view the new fact-finding/quasi-judicial rules as affecting schools’ liability when there is not a complainant/respondent/disputed facts circumstance?

One attendee pointed out that before these rule changes, so much of schools’ potential liability (at least for money damages) arose from a failure to respond properly (deliberate indifference).  A school could not just stick its head in the sand and ignore credible allegations of misconduct.  However, so many of the changes to the regulations focus on the due process in a fact-finding inquiry, necessarily involving a complainant and a respondent. What about situations where there is no complainant, respondent, or disputed facts—what are the liability risks there?

This is a fascinating question, and there is no doubt in my mind that these new rules are going to have significant impacts on liability—both favorable and unfavorable—for educational institutions, in both the courts and with OCR. The Title IX Coordinator does retain the ability to “sign” a complaint even if there is no complainant willing to file. It would seem that authority would exist even if there was no respondent. But the circumstances in which this authority will be exercised is simply not well fleshed out in the rule, and we will have to figure it out over time. We will continue to recommend, however, that individuals continue to take seriously and work with counsel to address knowledge of circumstances that might warrant opening a complaint, even without a willing complainant or even identifiable respondent, to avoid the risk of a deliberate indifference claim down the road.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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