A new rule brings changes to enforcement of sexual harassment regulations in higher education.
The Trump Administration’s Title IX rule has finally arrived.
Students, schools, and advocacy groups had been waiting for this rule since Secretary of Education Betsy DeVos announced in September 2017 that the U.S. Department of Education sought to roll back existing Title IX guidance.
In addition to establishing a new standard for administrative enforcement against noncompliant institutions, the rule sets forth requirements for university grievance procedures when a person reports experiencing sexual assault or harassment. The Education Department contends that these new procedures are consistent with constitutional due process, but advocacy groups anticipate that these requirements will discourage students from reporting sexual misconduct.
The Education Department’s Office for Civil Rights (OCR) published a notice of proposed rulemaking in late 2018. After receiving over 124,000 comments on the proposed regulations, OCR issued its final rule two weeks ago. OCR’s explanation for the rule is over 2,000 pages long.
Title IX, enacted under the Education Amendments of 1972, states that no person shall “be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program” on the basis of sex.
Under this mandate, OCR has encouraged schools and universities to adjudicate instances of sexual misconduct involving faculty, staff, and students since 2001. Most of the previous guidance on Title IX has taken the form of “Dear Colleague Letters”—informal guidance documents that did not have the force of law and were not subject to notice and comment. The most influential informal guidance documents, issued in 2011 and 2014, were rescinded by Secretary DeVos in 2017, after the Education Department criticized them as confusing and asserted that they inadequately addressed due process concerns.
The recently finalized rule redefines sexual harassment under Title IX as a form of impermissible sex discrimination. This definition applies to all members of university communities—including students, staff, and faculty. Not only are individual instances of sexual assault or harassment considered sex discrimination under the rule, but an institution’s failure to redress that harassment can also constitute sex discrimination. The Education Department may terminate federal financial assistance to institutions that OCR determines, through an administrative enforcement proceeding, to have violated Title IX.
The rule imposes new obligations on schools and universities, including a new standard for determining whether an institution has itself violated Title IX by failing to take action to address and alleviate sexual harassment. The regulations for the most part adopt the U.S. Supreme Court’s jurisprudence on sexual harassment, which provides a baseline framework for determining when an institution’s actions constitute impermissible sex discrimination.
The Education Department has defined sexual harassment as unwelcome conduct that is so “severe, pervasive, and objectively offensive that it effectively denies a person equal access” to educational opportunities. The definition also includes quid pro quo sexual conduct as well as prohibited sex offenses, such as domestic violence, stalking, and sexual assault, as defined under the Violence Against Women Act and Clery Act.
The new rule also seeks to clarify when reported instances of sexual harassment will trigger a school’s obligations to respond to reports of alleged harassment. The rule replaces a constructive knowledge standard with an actual knowledge standard, with the goal of prohibiting only intentional sex discrimination.
As a result, even if harassment is so severe or pervasive that a school official should have known about it, an institution may not be obligated to respond. The rule rejects this “should have known” standard, reasoning that, in the Department’s view, it creates undesirable incentives for schools to pry into the personal lives of those reporting sexual misconduct.
Despite the justification offered by the Education Department, critics of the rule, such as Georgetown University lecturer Sara Collina, contend that the rule is consistent with the Trump Administration’s goal to make it “more difficult to hold schools themselves accountable for creating and maintaining an educational environment free of sexual harassment and assault.”
Under these regulations, schools and universities must “respond promptly to every complainant in a manner that is not clearly unreasonable in light of the known circumstances.” This establishes a “deliberate indifference” standard—schools may not respond to reports of sexual harassment in a way that is clearly unreasonable, and if they do, the Education Department may be empowered to withhold federal funding for noncompliance with Title IX. Mandatory response measures include “promptly” providing supportive resources to all named parties in Title IX reports, not just those who report experiencing sexual misconduct.
The rule also establishes specific procedural requirements that schools must implement for the investigation and adjudication of Title IX claims.
During an investigation into a Title IX complaint, the school or university, rather than the reporting or responding party, bears the burden of gathering sufficient evidence to reach a determination of responsibility. The rule provides inconsistent protection of confidential information during the investigation stage—for example, a party’s privileged records may not be obtained without that party’s consent, but the rule forbids institutions from “restricting the ability of either party to discuss the allegations under investigation” with others who are not party to the investigation.
Specific procedural requirements include that universities provide sufficient, written notice of allegations, and that parties have the opportunity to present witnesses. Live hearings are required at postsecondary institutions, at which schools must make available the opportunity for cross examination by parties’ advisors—although decision-makers may prohibit advisors from asking questions deemed irrelevant. Furthermore, the rules leave it up to the discretion of an institution whether to require all parties to appear in the same room together for a hearing.
President of the University of California, Janet Napolitano, criticized these procedural aspects of the rule, noting that cross-examination especially, “in spite of more compassionate options,” may potentially result in underreporting and a reluctance among students to pursue formal investigations.
More generally, procedures must include a presumption of non-responsibility as well as “reasonably prompt time frames” for resolving complaints and appeals—although the rule provides no quantitative description of what constitutes a “prompt” response. The new rule also mandates that parties have sufficient information during the complaint resolution process, such as knowing what standard of proof will be applied, understanding potential disciplinary measures that may be imposed, and being aware of the opportunity to appeal.
After a finding of responsibility is made, a school may impose disciplinary remedies designed to preserve or restore equal access to education and may continue to make non-disciplinary, non-burdensome supportive measures available. Remedies may not be imposed until after a fair determination of responsibility is made—a determination free from conflicts of interest, conducted by trained decisionmakers.
Universities and advocacy groups are already responding to the rule, although it is unclear how institutions will alter their practices to comply with the new regulations. This rule will constitute a procedural floor, not a ceiling. Schools may still take certain actions that they determine best ensures impartial and fair proceedings and may still take other steps to demonstrate their support for survivors of sexual assault while complying with new Education Department policy.