“Why isn't the government — especially in light of the pandemic — willing to give schools more time?” That's what Judge Carl Nichols of the US District Court of the District of Columbia said during a July 2020 hearing in a suit brought by 16 states against the US Department of Education. The lawsuit stems from the DOE's new Title IX regulations issued in May of this year that went into effect on August 14, 2020.

What is Title IX?

Title IX is a federal civil rights law implemented as part of the Education Amendments of 1972 (“Title IX”), 20 USC. §1681 et seq. The law prohibits sex-based discrimination for federally funded schools in admissions, athletics, financial aid, and employment. Over the decades since Congress passed Title IX, the law has grown to include sexual assault and harassment, including intimate partner violence and stalking. Title IX applies to all educational institutions that accept federal funds, including public K-12 schools, colleges, and universities.

In the past, schools had to investigate and remedy sexual harassment if they knew or should have known of an incident. This obligation existed even if no student reported the behavior, and the regulations defined sexual harassment broadly as “unwelcome conduct of a sexual nature.” This responsibility resulted in rapid investigations, hearings, and severe punishments handed down, including suspension or expulsion, without full due process.

Changes to Title IX Regulations

The new Title IX regulations include many changes, including the ability for schools to use a “preponderance of the evidence” or a “clear and convincing” standard for determining whether sexual misconduct occurred. Most controversially, the new regulations require due process hearings and allow cross-examination of witnesses, including the accuser and the accused, by attorneys or advisors for both parties.

The new regulations require the school to have actual knowledge of sexual harassment incidents and narrow the definition of sexual harassment. The new standard requires “unwelcome conduct that a reasonable person would determine is so severe, pervasive and objectively offensive that it denies a person access to the school's education program or activity.” If the conduct doesn't meet this standard of sexual harassment, the school cannot pursue the investigation.

Over the summer, colleges across the country have been rolling out new policies and procedures to comply with the new regulations, with only 100 days to revamp 30 years of Title IX procedure. But the group of universities challenging the new rules claims that time to comply is not the only problem. The schools argue, in part, DOE's narrowing of the definition of “sexual harassment” limits schools' ability to investigate and remedy sexual harassment, conflicting with Title IX's broader anti-discrimination mandate. But as of today, the new regulations are in force across the US, despite Judge Nichols' suggestions that schools need more time.

Hire an Experienced Title IX Attorney Advisor

If you or your child are facing Title IX charges, you need an attorney experienced in the Title IX process. The Lento Law Firm can help. Attorney Joseph D. Lento has handled hundreds of Title IX cases from investigations to hearings at schools across the country. Call the Lento Law Firm a call at 888-535-3686 or contact us online.