On May 6, 2020, the Department of Education (DOE) issued the long-awaited final Title IX regulations, which go into effect Aug. 14, 2020. This tight timeline will mean a lot of policy and procedure changes for many schools in a very short time frame. Unlike the informal guidance issued by President Obama’s administration in 2011 and 2014, these regulations have gone through a formal rulemaking process, which means they cannot simply be rescinded. These regulations will remain law for the foreseeable future, regardless of political sea changes.
This multipart series addresses changes to Title IX’s jurisdictional scope, as reflected in the new regulatory definitions; its grievance, informal resolution, training and investigative requirements; and the formal hearing and appeals processes.
The Grievance Process
The new Title IX regulations impose specific procedural burdens on institutions that receive a formal complaint of sexual harassment from a student or employee. As explained in Part I, a “formal complaint” is a “document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the recipient investigate the allegation of sexual harassment.” When an institution receives a formal complaint, it must promptly address the complaint through a formal grievance procedure, unless the complainant and respondent opt to participate in an informal resolution. Both paths are described below.
1. Formal Grievance Procedure — Overview and Principles
The new regulations set out the requirements for a formal grievance procedure in Section §106.45. The section codifies general principles aimed at ensuring that “grievance procedures treat complainants and respondents equitably” and calls for a predictable process that presumes that the respondent is not responsible for the alleged conduct. Importantly, this means the respondent does not have to prove “innocence” under the new rule.
A compliant formal grievance procedure must embody these principles and consist of three distinct stages: investigation, hearing and appeal. The new regulations expressly provide that sanctions cannot be imposed on a respondent without following a compliant formal grievance process. Further, the regulations acknowledge that an institution’s treatment of a complainant, or a respondent, could constitute sex discrimination prohibited under Title IX. Therefore, to avoid future liability, it is critically important to craft a process that complies with 106.45.
The new regulations also require equal access to information and equal opportunity to respond. At the outset of the process, the institution must provide both parties with a description of the process, the applicable standard of evidence, a summary of possible sanctions, appeal rights and available supportive measures. Both parties must have the opportunity to present evidence during the investigation, and both parties must have the opportunity to view and respond to the evidence prior to the hearing.
2. Informal Resolution
As an alternative to the formal grievance procedure, an institution may offer parties the option of participating in an informal resolution process. If both parties voluntarily consent, the institution can thereby resolve the complaint without engaging in the formal grievance procedure. Voluntary consent means that there can be no conditions placed on the parties in exchange for their consent — i.e., there can be no conditional promise of continued enrollment or employment in exchange for consent to informal resolution. Either party can withdraw consent at any time, in which case the institution must revert to the formal grievance procedures outlined above.
An informal resolution process should take the form of a mediation or arbitration before a neutral third party. However, the exact details are left open by the final regulations. Institutions must consider whom they will ask to act as mediator, how the mediator will be trained, and how to prevent conflicts of interest and bias from tainting the process.
Finally, like the formal grievance procedure, the informal resolution process must be equitable. Both parties must be notified, in writing, of the allegations made in the formal complaint, the requirements of the informal resolution process, and what elements of the process will remain confidential (or not).