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Brookings Report on the Department of Education’s New Title IX Regulations

Posted by Joseph D. Lento | Jul 22, 2020 | 0 Comments

In 2017, the Department of Education withdrew Obama-era guidance regarding claims under Title IX, a federal law that prohibits discrimination on the basis of sex at federally funded educational institutions. The following year, the department issued a notice of proposed rulemaking, but it wasn't until May 2020 — 124,000 public comments later — that it issued its new Title IX rules, the explanation for which is more than 2,000 pages long.

Among the new regulations are changes to the way sexual harassment claims are to be handled and processed by colleges and universities. What follows is a brief explanation of the Brookings Institution's conclusions regarding the new rules, notably how they are relevant to respondents in Title IX cases.

Immediate Future Regarding New Title IX Rules

Brookings first notes the controversy surrounding the new Title IX rules as prominent Democrats including former Vice President and current presidential candidate Joe Biden and House Speaker Nancy Pelosi have spoken out against them. Court challenges have already arisen, though Brookings predicts that the rules will still go into effect on August 14 as stated because, Brookings states, “[n]ot only was the Education Department's rulemaking process extraordinarily extensive and its response to comments meticulous, but its final rules return to the legal framework established by the Supreme Court over two decades ago.”

While Brookings notes that a Biden presidential victory could mean eventual changes to the rules, even that process would take quite a while and in the meantime, colleges and universities must be prepared to abide by the recently released new rules by mid-August.

Placing New Title IX Rules in Context

Brookings explains that the federal rules concerning sexual harassment cases at educational institutions are established through administrative rulemaking because the basis of the federal government's authority to make such rules (Title IX of the Education Amendments of 1972) doesn't address sexual harassment at all. This peculiar fact arises from the historical and legal truth that the term “sexual harassment” wasn't broadly used until the 1980s when sexual harassment became explicitly included under Title IX protections in the employment context. A decade later, courts applied the concept to schools, and it was only at this point that the Department of Education's Office for Civil Rights (OCR) stepped in to offer guidance on the issue. 

Two U.S. Supreme Court rulings on sexual harassment in the late 1990s held that schools receiving federal funds could be held liable in such lawsuits only if the school had “actual knowledge” of the misconduct and acted with “deliberate indifference.” In 2001, the OCR limited the Supreme Court's holdings to apply only in lawsuits seeking monetary damages. In 2011, the Obama Administration issued a “dear colleague letter” (DCL) with instructions for schools on actions to take to combat sexual harassment, and in 2014, the OCR released even more guidance. As noted by Brookings, these proclamations shifted the focus from “identifying and punishing the perpetrators of on-campus sexual misconduct with a much broader effort to change social attitudes and to mitigate the effects of sexual assault wherever it occurs.”

Major Changes in Title IX Rules

Before the most recent rules, schools were encouraged to apply a “preponderance of the evidence” standard to prove guilt and a “single investigator” model through which only one person handles a case from investigation through to its conclusion and finding of guilt or innocence. Moreover, the definition of sexual harassment included “verbal conduct,” such as “making sexual comments, jokes or gestures,” “spreading sexual rumors,” and “creating e-mails or Web sites of a sexual nature.” Substantial efforts were to be geared toward prevention.

Under the recently released rules, however, the focus shifted from a broad prevention strategy to one that addressed specific instances of sexual misconduct. One of the most controversial aspects of the rules is the requirement that postsecondary schools “hold live disciplinary hearings in sexual misconduct cases and allow cross-examination of witnesses.” This cross-examination is to be conducted by the parties' advisors — not the parties themselves — and can be conducted remotely or otherwise with the parties in separate locations. Still, Brookings predicts legal and administrative challenges to the cross-examination requirement.

Additionally, the new rules prohibit the use of a “single investigator” of such claims. Instead, schools must have distinct “decision-makers” as Title IX coordinators and investigators.

The new regulations further permit schools to choose whether to use a “preponderance of the evidence” or the stricter “clear and convincing evidence” standard, provided they apply the same standard to all sexual harassment cases at the school, including those involving faculty and staff. This last provision could end up pushing some schools to apply the stricter standard because of existing contractual terms in employee agreements and rules, according to Brookings.

Also, the new rules narrow the definition of sexual harassment by specifically naming quid pro quo harassment (when an educational opportunity is conditioned on the granting of a sexual favor) as well as sexual assault, dating violence, domestic violence, and stalking as violations as sexual harassment, but requiring that other “unwelcome conduct” be “so serious, pervasive, and objectively offensive that it effectively denies a person equal access” to an educational program to be considered sexual harassment.

Finally, the new regulations include specific procedural requirements involving notice and written reports to both parties within certain time frames, including involving the ultimate decision, which either party can appeal. Schools may decide for themselves whether an allegation that punishment was too lenient constitutes an acceptable ground for appeal.

Application of New Title IX Rules 

Brookings predicts that schools are likely not “eager to go through another round of revision” and, in fact, reports that “on most matters, schools have indicated their intent to stand pat.” That said, Brookings notes, schools likely weren't caught off-guard by these new rules as there have been indications that the Department of Education would make these changes regarding the definition of sexual harassment, live hearings, and cross-examination for over a year.

So while it is uncertain how specific schools will apply the new rules, there is little doubt that these regulations will be the reality for Title IX cases for a good while. For respondents in such cases, then, it is imperative to have an advisor by your side to ensure that your rights are being protected and that all current and applicable rules are being followed by your university. 

If you are being accused of or investigated for a potential sexual harassment claim by your school, the time to speak with an experienced advisor is now.

Contact the Lento Law Firm online or call (888) 555-3686 to start discussing your case today.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Joseph D. Lento has more than a decade of experience passionately fighting for the futures of his clients. Mr. Lento represents students and others in disciplinary cases and other proceedings at universities and colleges across the United States while concurrently fighting in criminal courtrooms in Philadelphia, the Pennsylvania counties, and New Jersey. Mr. Lento has helped countless students, professors, and others in academia at more than a thousand universities and colleges across the United States. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. Joseph D. Lento is licensed in Pennsylvania, New Jersey, and New York, and is admitted pro hac vice as needed nationwide.

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