ED Releases Final Title IX Rule

Following efforts started by the Trump administration in the fall of 2017 to remove Obama administration guidance on the handling of campus sexual harassment and assault and overhaul the regulations, the Department of Education has released its final rule, with extensive changes to Title IX regulations. Colleges and universities must be in compliance with the rule on August 14, 2020.

NACUBO, as part of an effort led by the American Council on Education, commented on ED’s proposed changes to Title IX with an extensive list of concerns and recommendations, as well as support for certain components of the rule. The final rule is mostly unchanged from the proposal.

The higher education community also urged ED to delay release of this rule due to the ongoing COVID-19 pandemic that has most college and university campuses closed for an indeterminate time, but ED chose not to delay either the release of the rule or its effective date.

The final rule includes:

• A definition of “actual knowledge” for colleges and universities to include sexual harassment or allegations of sexual harassment reported in some form to an institution’s Title IX Coordinator or an official of the school who has the authority to institute corrective measures on behalf of the school.
  
  
• A definition of “sexual harassment” to mean conduct on the basis of sex that meets one or more of the following:
  • A school employee conditioning education benefits on participation in unwelcome sexual conduct (i.e., quid pro quo); or
  • Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school's education program or activity; or
  • Sexual assault (as defined in the Clery Act), dating violence, domestic violence, or stalking as defined in the Violence Against Women Act (VAWA).
    
    
• A requirement that each school have a designated Title IX Coordinator, with contact information shared and prominently displayed, to be contacted at any time with complaints.
  
  
• Mandatory response requirements for a postsecondary institution for incidents occurring in its educational program or activity, which includes locations, events, or circumstances over which the school exercised substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes incidents at any building owned or controlled by a student organization that is officially recognized by a postsecondary institution.
  
  
• A requirement that mandatory responses include supportive measures to the complainant in all cases, formal or otherwise, and a requirement that schools investigate every formal complaint made that follows a grievance process that is compliant with other elements of the rule.
  
  
• A requirement that schools send both parties a formal complaint written notice detailing the allegations of the complaint.
  
  
• A requirement that at postsecondary institutions, the grievance process must provide for a live hearing that:
  • Permits each party to have an advisor present, who will conduct a cross-examination of the other party directly and in real time.
  • Permits each party to be in separate rooms during the live hearing if requested but with technology enabling both parties to see and hear everything taking place.
  • Requires the school to provide an advisor for parties at no charge if the party doesn’t otherwise have an advisor present.
    
    
• “Rape Shield” protections for complainants that prohibit questions and evidence about the complainant’s sexual predisposition or prior sexual behavior unless offered to prove that someone other than the respondent committed the conduct in question or if offered to prove consent.
  
  
• A requirement that schools either choose to use a “preponderance of the evidence” standard or a “clear and convincing evidence” standard in their grievance process, which must be used for complaints against students and complaints against employees.
  
  
• A requirement that both parties to a complaint have a right to appeal decisions at multiple steps throughout the complaint filing and adjudication process.
  
  
• Allowance for schools to maintain a more informal resolution process for complaints if both parties consent to the informal process.
  
  
• A prohibition on retaliation against any individual for exercising their Title IX rights.

In conjunction with the release of the rule, ED’s Office of Civil Rights released several summary documents and an explainer video to assist schools with compliance. NACUBO has additional compliance resources available.

It is expected that survivor advocate organizations, including the National Women’s Law Center, will raise a legal challenge to the new rules.