On May 6, the U.S. Department of Education released new Title IX regulations that will dramatically alter how schools nationwide address, investigate, and resolve issues involving sexual harassment and related behaviors. While these changes come at a time of uncertainty amid the coronavirus pandemic and will require heavy analysis and effort by schools to ensure compliance, the regulations set a fast-approaching compliance date of August 14, 2020.
The new regulations are long and dense, totaling more than 2,000 pages, and they are highly prescriptive. They will require all schools to promptly and carefully revisit, revise, and, in some cases, completely overhaul their existing policies, procedures, staffing, and overall approach on this front.
Our team is poring through and digesting the regulations and already working closely with multiple schools to spot the most pressing issues and outline and implement an organized institutional approach. We plan to host a series of webinars in the coming weeks to provide detailed analysis and suggestions for next steps, and we will provide detailed information regarding, and invitations to, those webinars early next week. In the meantime, below are a handful of key initial takeaways and also links to the final regulations and related materials from the U.S. Department of Education.
Key Initial Takeaways
- The new regulations codify that sexual harassment, including sexual assault, dating violence, domestic violence, and stalking, are prohibited under Title IX. (This concept previously was contained in informal guidance, as opposed to formal regulation, and now will carry additional legal weight.)
- They also add “mandatory response obligations” such as offering supportive measures to all complainants, with or without a formal complaint.
- Under the new regulations, schools must adjust their Title IX grievance procedures to account for additional requirements and limitations on the use of informal resolution mechanisms such as mediation and restorative justice.
- The new regulations significantly change and narrow the triggers for schools’ use of formal grievance processes to address sexual harassment and related behaviors, and they also significantly increase the formality of grievance process investigation and resolution requirements. For example, the new regulations require grievance processes at postsecondary schools to provide for a live hearing during which each party’s advisor must be given the opportunity to cross-examine the other party and any witnesses. Additionally, schools must provide an advisor to a party (without cost to the party) if one is not present at the live hearing, and live hearings must be recorded or transcribed.
- While previous guidance from the Department of Education required that schools apply a preponderance of the evidence standard in their Title IX grievance processes, the new regulations specify that schools may use either a preponderance of the evidence or a clear and convincing standard and that the standard must be consistent for all formal complaints, whether against a student or an employee.
- Schools will now have to publish their Title IX training materials on their websites.
Links to the Final Regulations and Related Materials From the U.S. Department of Education