In a major shift from past guidance, the U.S. Department of Education proposed new regulations for how colleges and universities are to address allegations of sexual harassment, including sexual assault, under Title IX. If the regulations are approved, most institutions will have to make substantial changes in how they handle campus sexual misconduct.

The proposed regulations, released November 16, narrow both the definition of what constitutes “sexual harassment” and the circumstances under which an institution is obligated to respond. They would also require a college or university to initiate grievance procedures only in situations involving a “formal complaint,” which is defined as a specific, written and signed document alleging certain types of sexual misconduct.

Once a formal complaint is filed, however, the regulations will impose detailed and onerous requirements. An institution must follow specific steps to investigate and adjudicate a formal complaint—including providing a live hearing with cross-examination of parties and witnesses before a decision-maker who was not involved in the investigation.

Narrowed Definitions of “Sexual Harassment” and “Formal Complaint”

Under the proposed regulations, “sexual harassment” means the following: (1) an employee conditioning an aid, benefit or service of the institution on an individual’s participation in unwelcome sexual conduct; (2) unwelcome conduct on the basis of sex that is “so severe, pervasive, and objectively offensive” that it denies a person equal access to educational programs or activities; or (3) sexual assault as defined under the Clery Act. Previous Title IX guidance defined sexual harassment more broadly as “unwelcome conduct of a sexual nature.”

The new guidance defines a “formal complaint” as a document signed by either a complainant or by the institution’s Title IX coordinator alleging sexual harassment against a respondent within an institution’s programs or activities and requesting the initiation of grievance procedures.

The narrow definition of a formal complaint is intended to separate the circumstances in which an institution must investigate and adjudicate in accordance with the specific regulatory framework and the circumstances in which an institution must merely respond in a manner that is not clearly unreasonable.

Detailed Requirements for Investigating and Adjudicating Formal Complaints

The most substantial changes proposed from past department guidance relate to the handling of formal complaints. These include:

• Limiting the circumstances under which a respondent may be removed from the education program or activity on an emergency basis and requiring that the respondent receive an “immediate” opportunity to challenge any such decision.
• Requiring that both parties receive detailed written notice of the allegations and procedures, a statement that the respondent is presumed not responsible and notice of any student code provision prohibiting false statements.
• Placing the burden of gathering evidence on the institution, allowing both parties equal opportunity to present witnesses and evidence, and prohibiting institutions from restricting either party from discussing the allegations or evidence with others.
• Requiring that each party have an equal opportunity to review any evidence obtained in the investigation that is “directly related” to the allegations, even if the evidence is not relied upon in determining responsibility.
• Providing a live hearing that allows for cross-examination. Parties must submit to cross-examination by the other party’s advisor of choice, which may include an attorney. If a party does not have an advisor, the institution must provide one. If a party or witness does not submit to cross-examination at the hearing, the decision-maker is prohibited from relying on any statement of that party or witness.
• Requiring that the decision as to responsibility and sanctions be made by a person who is not the institution’s Title IX coordinator or the investigator. The decision-maker must provide a detailed, written statement of factual findings, conclusions, and an explanation of the reasoning for the determination of responsibility and any sanction.
• Allowing either a “clear and convincing” or “preponderance of the evidence” standard. But a preponderance standard can only be used if it is also used “for conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanction.”
• Providing the option of allowing an appeal. If appeals are available, both parties must be allowed to appeal.

Overall, the proposed regulations are voluminous and their implications are substantial. The proposed regulations were published in the Federal Register on November 29 and they are subject to a 60-day public comment period. Public comments must be received by January 28, 2019, after which time the department will issue final regulations.