By Jonathan B. Orleans and Michael Thad Allen
The first formal changes to Title IX’s implementing regulations in 45 years are here, and they are significant. The federal statute, which prohibits sex discrimination in educational programs receiving federal financial assistance, had its earliest impacts on intercollegiate athletics. But since the late 1990s, it has also been interpreted to prohibit sexual harassment in education. It is this aspect of the Title IX regulations that has received an overhaul.
Although 17 months elapsed between the Trump administration’s November 2018 request for public comment on proposed new regulations and its announcement of the new regulations on May 6, 2020, colleges and universities have been given an unusually short window to implement necessary changes to their rules and procedures: The new regulations take effect Aug. 14. And schools must confront this burden during a pandemic that has left them scrambling to find ways to hold in-person classes in the fall.
It’s a challenging situation, to say the least. Here are some key elements of the regulations to help bring administrators up to speed.
One of the most noteworthy (and criticized) aspects of the new regulations is the requirement, in cases of alleged sexual misconduct, that there be a live, trial-like hearing in which parties have the right to cross-examine witnesses. Currently, some institutions hold live hearings but many do not; some permit cross-examination and others do not; and few automatically bar consideration of statements by witnesses who refuse cross examination, as the new rules also require.
Students who are involved in a case (both complainant and respondent) now have the right to an “advisor,” who will (among other things) conduct the cross-examinations of the other side’s witnesses. If a party does not have an advisor, the school must provide one without charge, but the advisor need not be an attorney.
Of course, students (whether complaining or responding) who can afford to hire private lawyers are likely to do so. This may create disparities in representation, although critics of campus proceedings contend that there is already disparity in supportive resources, which are often made available to alleged victims but not the accused. Still, having one side represented by a lawyer while the other is not may well be perceived as unfair, and pressure may build on colleges and universities to hire counsel for students who cannot afford their own.
Advocates for survivors of sexual assault and harassment, along with many colleges and universities, have expressed concern that the prospect of cross-examination will discourage students from coming forward to report sexual misconduct, as it may force them to relive the trauma of an assault. Advocates for the accused, including prominent law school faculty members, have countered that cross-examination is the most effective way we know to get at the truth, which should always be the primary objective.
Some aspects of the new regulations attempt to balance these competing concerns. If requested by either party, the institution must place the parties in separate rooms and conduct the hearing using technology that enables them to see and hear each other. Cross-examination must be conducted by the parties’ advisors, and not by the parties themselves, thus sparing complainants the potential trauma of being cross-examined by the person who assaulted them. The decision-maker, presiding at the hearing, will determine whether each question asked during cross-examination is relevant and whether it violates rape shield law protections (laws that in court proceedings limit the ability of the defendant to cross-examine a rape victim about past sexual behavior) before it is answered. The new regulations also clarify that it is the institution, and not the complainant individually, that bears the burden of proof to establish that the misconduct occurred, and the accused must be presumed not responsible, just as in criminal court, the state bears the burden of proof and the defendant is innocent until proven guilty.
Other procedural changes
The new rules will require other major changes to procedures. During the Obama administration, many institutions adopted the single-investigator model, which makes one person the investigator, fact-finder and decision-maker. This model has one obvious advantage: low cost. But it has been widely criticized for depriving parties of any meaningful challenge to the consideration of evidence. The new regulations specifically disallow this practice.
The new regulations delineate four separate roles to be carried out by four different individuals, who are specifically required to be free from conflicts of interest or bias for or against complainants or respondents: the Title IX coordinator, who administers the process; an investigator; a decision-maker; and an appellate decision-maker. All four of these people must be carefully trained to handle their responsibilities.
The new regulations also require that both parties have access to all evidence. The strongest objections to this requirement arose from concerns about the disclosure of confidential medical information of complainants. This concern has been addressed with a provision that a party’s medical records may not be disclosed or used without the party’s consent.
Colleges and universities opposed many provisions of the new rules on the ground that these institutions simply are not designed, and should not be required, to operate like courts. Faculty and students who may be well-suited to determining whether plagiarism has occurred or whether an honor code has been violated, for example, may lack the knowledge, skills and training required to evaluate claims of sexual misconduct in a trial-like setting. Smaller institutions may consider outsourcing these functions, and potentially sharing with other area institutions to mitigate the cost.
The government sought to pare back the reach of Title IX in at least two ways, first, by restricting the application of the new regulations to conduct that occurs in the school’s educational program or activity, and against a person in the U.S. Officially recognized fraternity and sorority houses are covered, but incidents occurring, for example, on a study-abroad program are not. This provision of the proposed regulations was strongly criticized by numerous commenters; the Department of Education’s rationale for the limitation is based on the text of the statute, which protects “person[s] in the United States.”
Second, the regulations also narrow Title IX’s scope by stating that sexual harassment must be “so severe, pervasive, and objectively offensive that it denies a person equal educational access.” This is a higher standard than the previous interpretation of the statute by the Department of Education. But quid pro quo harassment, sexual assault, stalking, domestic abuse and intimate partner violence will still trigger disciplinary action under Title IX, even if there is only one occurrence.
The new regulations have been widely criticized for requiring colleges and universities to dismiss complaints that do not meet these definitions of “sexual harassment,” or that allege activity that occurred outside the educational programs or activities of the school or outside the U.S. Notably, however, the regulations still expressly grant universities the discretion to prohibit conduct outside the reach of Title IX under their own codes of conduct and procedures.
The Aug. 14 effective date of the new regulations is approaching fast, but it may be delayed. At least four lawsuits have been filed to block the regulations from going into effect, one of them by 18 Democratic state attorneys general. This month, 14 Republican state attorneys general filed an amicus curiae (“friend of the court”) brief defending the regulations. It remains to be seen when the court will rule. The outcome of November’s election could have a bearing on the long-term outcome as well.
For now though, every institution needs to give careful thought to how it will comply with the new Title IX regulations even amid all the other challenges they currently face. The costs of failing to do so—from possible loss of federal funding to suits by aggrieved students—are likely to be severe.
Jonathan Orleans co-chairs the Educational Institutions practice at the law firm of Pullman & Comley. Michael Thad Allen is an attorney representing students, both victims and accused, and a former tenured history professor at the Georgia Institute of Technology.