CLIENT ALERT: DOE Final Rule Revamps Title IX Obligations

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School administrators now have one more task to add to their summer to-do list: revamping their Title IX policies and procedures to comply with a new set of rules for responding to campus sexual misconduct.

On May 6, 2020, the U.S. Department of Education issued its final rule interpreting sex discrimination protections for students under Title IX. Most school districts, colleges, and universities must comply with the new regulations by August 14, 2020.

The regulations define sexual harassment to include sexual assault, dating violence, domestic violence, and stalking, as well as conditioning educational services upon participation in unwelcome sexual conduct. In addition, sexual harassment includes unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies the victim equal access to an educational program or activity. Incidents that occur off campus, however, and not as part of a school program are outside the reach of Title IX, even if the complainant and the accused are both students. Conduct also must occur while the victim is in the United States, so misconduct on school-sponsored trips abroad is outside the reach of Title IX.

Schools are required to investigate every formal complaint that is directed to a Title IX coordinator or other official with authority to act on the complaint. At the elementary and secondary school levels, notice to any employee is considered actual knowledge on behalf of the school, such that K-12 schools should continue to impose mandatory reporting of informal complaints for all employees. Institutions of higher learning, however, need not require that teachers, coaches, and other staff report informal allegations of sexual misconduct.

In large part, the regulations reflect Education Secretary Betsy DeVos’ expressed goal of providing enhanced procedural protections for students accused of sexual misconduct. For example, schools must create investigation reports summarizing the relevant evidence and provide both parties with a copy of the report and an opportunity to provide a written response. Colleges and universities are required to hold live hearings during which accused students will be entitled to have an “adviser” cross-examine the complainant. Schools can adopt either a “preponderance of the evidence” or a “clear and convincing evidence” standard for the burden of proof, so long as the standard adopted for students is set forth in the school’s written procedures and is consistent with the standard applicable to faculty and staff. Schools also must provide for appeals.

Given the ongoing pandemic-related concerns facing educational institutions, the Department’s August 14 deadline will present a challenge to many organizations. Nevertheless, schools subject to Title IX should review and, if needed, revise their policies to ensure compliance with the new regulations before August 14. Depending on the degree of changes required, training prior to the new school year also may be in order. Attorneys at Potter Anderson & Corroon LLP are available to assist with these steps and to advise schools through the process.

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