May 11, 2020
On May 6, 2020, after a two-year drafting process, the U.S. Department of Education (“DOE”) released its new and revised Title IX regulations (the “Final Rule”), significantly expanding and defining educational institutions’ regulatory obligations for responding to and addressing alleged sexual harassment and misconduct within education programs and activities. Unlike the prior Obama administration Title IX guidelines, these regulations have the force of law and, unless enjoined by a Court, must be implemented (as applicable) by schools by the effective date of August 14, 2020.
The Nelson Mullins Education Team’s initial assessment follows below. We also invite you to a complimentary webinar on May 20 during which we will discuss these topics and related strategies for education institutions in more detail. You can register HERE
or by clicking on the link at the bottom of this page.
What do the new regulations do?
The regulations impose a burdensome disciplinary scheme on schools that, in most circumstances, must be followed and that, in certain circumstances, may hamper colleges from effectively addressing alleged harassment. Navigating those issues and implementing the often-overbearing regulations that require academic institutions to build judicial ecosystems – in three months – will be tremendously challenging. Shared thought leadership is necessary in this environment; we offer our initial perspectives below.
As an initial matter, the Final Rule sets forth jurisdictional requirements that trigger a school’s Title IX obligations. Under 34 C.F.R. § 106.44(a), if a school has “actual knowledge” of “sexual harassment” within its “education program or activity” “against a person in the United States,” it “must respond promptly in a manner that is not deliberately indifferent,” or “clearly unreasonable in light of the known circumstances.” This standard originates from the “deliberate indifference” standard of institutional liability under the U.S. Supreme Court’s 1999 case Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the formative student-on-student sexual harassment case under Title IX.
The Final Rule defines “sexual harassment” to include only three categories of behavior: (1) quid pro quo sexual harassment by a college employee; (2) sexual assault, dating violence, domestic violence and stalking, as defined under the Clery Act; and (3) “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the [school’s] education program or activity.” 34 C.F.R. § 106.30. The latter category, though narrower than common Title VII standards, is consistent with the Title IX standard for actionable harassment under Davis.
A school’s response obligations under the new regulations are also limited to when a school has “actual knowledge” of sexual harassment, which is defined as “notice of sexual harassment or allegations of sexual harassment to a [school’s] Title IX Coordinator or any official of the [school] who has authority to institute corrective measures on behalf of the [school] . . . . [C]onstructive notice is insufficient to constitute actual knowledge.” 34 C.F.R. § 106.30(a). This is a narrower group of employees and staff than many colleges currently include within their mandatory reporter or responsible employee policies, and the standard is narrower than prior DOE guidance dating back to at least 2001. However, it is consistent with U.S. Supreme Court precedent under Davis, 526 U.S. at 642, and Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 290 (1998). (It should also be noted that the notice standard for K-12 schools differs greatly under the new regulations, which will result in a dramatic shift for primary and secondary schools. Nelson Mullins will issue a separate alert for K-12 schools.)
DOE’s requirement to provide supportive measures, with or without a formal complaint, appears to be a focus of the new regulations. Supportive measures are defined as “non-disciplinary, non-punitive individualized services” that “are designed to restore or preserve equal access to the [school’s] education program or activity” for an alleged victim or other person. 34 C.F.R. § 106.30(a). This is consistent with Title IX’s statutory basis, which focused on improving the equity of educational opportunities: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681.
The new regulations specify that supportive measures should be “designed to protect the safety of all parties or the [school’s] educational environment, or deter sexual harassment,” but they should not “unreasonably burden the other party.” 34 C.F.R. § 106.30(a). Supportive measures should be offered for free and should remain “confidential … to the extent that maintaining such confidentiality would not impair the ability of the [school] to provide the supportive measures.” Id. They must be offered “promptly” and “in a manner that is not deliberately indifferent.” 34 C.F.R. § 106.44(a).
The new Title IX grievance process
Initiating the process via a Formal Complaint
While supportive measures seem to be key to the new system, the DOE-imposed formal grievance process will make possible disciplinary measures much more difficult to address. Where the jurisdictional requirements are present, the Final Rule now requires colleges to administer a formal “grievance process that complies with § 106.45 before the imposition of any disciplinary sanctions or other actions … against a respondent” beyond supportive measures. 34 C.F.R. § 106.44(a) (emphasis added); 34 C.F.R. § 106.45(b)(1)(i); see also 34 C.F.R. § 106.8(c). A “formal complaint” alleging sexual harassment also must be initiated before a grievance process can be initiated. See 34 C.F.R. § 106.45. A “formal complaint” is a (1) a document (2) filed by an alleged victim or signed by the Title IX Coordinator, (3) alleging “sexual harassment” (4) against an alleged harasser and (5) “requesting that the [school] investigate the allegation of sexual harassment.” 34 C.F.R. § 106.30. This document plays an exceedingly critical role in the new Title IX process – a college cannot impose discipline for sexual harassment without following a grievance process compliant with 34 C.F.R. § 106.45, and it cannot initiate the grievance process without a formal complaint. For alleged victims, the formal complaint definition in the new regulations is broad – any time an investigation is requested – and is much broader than the proposed definition in DOE’s 2018 draft regulations. But the definition excludes third-party roommates and witnesses from being able to file reports that would initiate a school’s investigation and grievance process without the Title IX Coordinator’s assent.
To initiate a formal complaint, however, the alleged victim “must be participating in or attempting to participate in [the school’s] education program or activity.” 34 C.F.R. § 106.30. At this point, it is unclear whether the Title IX Coordinator could “sign” a formal complaint without the victim’s continued participation (or attempted participation) in the school’s programs and activities, such as when a victim has withdrawn from school, perhaps due to the trauma of a sexual assault.
The Grievance Process
Although aspects of DOE’s prescribed grievance process are certainly controversial, they appear to be legally required as of August 14, 2020. We encourage schools to review the Title IX regulations for full details. Schools should prepare to adopt and implement these regulations for the fall semester in order to address Formal Complaints, and to schedule detailed trainings so that relevant staff and employees are prepared to carry out their requirements.
A few aspects of the regulations deserve comment:
Informal resolution is also restricted under the Final Rule, as a school “may not offer an informal resolution process unless a formal complaint is filed.” 34 C.F.R. § 106.45(b)(9). If the parties thereafter voluntarily agree to an informal resolution, schools appear to have flexibility in their implementation of informal resolution processes. See id. Informal resolution is not available “to resolve allegations that an employee sexually harassed a student.” 34 C.F.R. § 106.45(b)(9)(iii).
The new regulations are complicated and onerous, but they are set to take effect on August 14. Thus, schools should begin now to take the following steps:
In theory, a school should not be liable under Title IX as long as it follows DOE’s regulatory scheme – even the misguided parts – but that is cold comfort.
On May 20, Nelson Mullins will be hosting a webinar to further explore how schools can develop their policies, processes, and training programs to comply with their ideals as well as the Final Rule’s provisions. We hope you will join us.
Webinar link to be provided after registration.
Click here to register
 https://www2.ed.gov/about/offices/list/ocr/docs/titleix-regs-unofficial.pdf. Following 2,007 pages of preamble, the regulations begin on page 2,008.
These materials have been prepared for informational purposes only and are not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel.