In November of 2018, the Department of Education released its anticipated proposed Title IX rules. Following a formal notice and a 60 day comment period, the Department of Education has over 100,000 comments to now sift through and make its next move. If the rules are finalized as currently written, many institutions will find themselves tweaking their compliance efforts yet again.
Highlights of the November 2018 New Proposed Rules:
The new proposed rules provide a number of definitions, which limit when a Title IX case is triggered to the following:
- Conduct meeting the definition of “sexual harassment” has taken place;
- The school has “actual knowledge” of the conduct;
- The conduct occurred within the school’s programs, including classes and extra curriculars.
If the Title IX process is triggered, a formal complaint is then written by the complainant or the school’s Title IX Coordinator. Under the new proposed regulations, this begins a very prescriptive process for formal investigations and requirements of the university. The regulations provide for prompt timeframes for the grievance process, written notices, a presumption of innocence for the accused, a live hearing (with advisor of choice or one provided), cross examination with some limitations, and a written determination to be made following the hearing. The proposed regulations make references to “due process” for the respondent during this period, and this prescriptive process has been criticized by some as requiring the schools to become “mini courts.”
In addition, one of the most notable changes contained in these proposed rules is a prohibition on the single investigator model in the grievance process. As stated in the DOE’s fact sheet, there will be “[a] prohibition of the single-investigator model, instead requiring a decision-maker separate from the Title IX Coordinator or investigator” to make the final determination of responsibility.
What has traditionally been known as “interim measures” is replaced in the new proposed regulations by the phrase “supportive measures.” As has been true in the past, under the new rules, schools may still continue to offer these measures even if the complainant elects not to file a formal complaint. Furthermore, informal resolution is still permitted at any point during the process before the final resolution, as long as both parties are given written notice.
Finally, the proposed regulations give schools a choice of evidentiary standards to use for its Title IX cases – “preponderance of the evidence” OR “clear and convincing,” but with restriction. The standard of evidence that a school uses for its Title IX cases must be the same standard of evidence that it uses for other kinds of cases within its code of conduct that carry similar penalties. Moreover, the same standard of evidence must be used for all Title IX cases, whether they include students, employees or faculty. As a result, if a university uses a clear and convincing standard for an accused tenured professor, that must also be the standard of evidence used for students and employees.
With so many comments received, it may be some time before the Department of Education decides whether to finalize the rules as proposed, or make changes. In the meantime, the Department of Education’s sub-regulatory September 2017 Q&A on Sexual Misconduct should continue to be a guiding document for schools on its Title IX responsibilities.