New Regulations, New Policies, New Challenges and Opportunities
On Wednesday, May 6, 2020, the Department of Education (DOE) released their new Title IX regulations. Clocking in at 2,033 pages (not a typo — 2,033 pages), many of us in the educational field continue to comb through them to understand schools’ new responsibilities. The regulations are effective August 14, 2020.
The changes are many and too lengthy to fully dive into in a blog post. However, there are some points particularly important to highlight, as they will have a resounding impact on schools, and may potentially affect workplace investigations in the future. Here is what you need to know now, in bite-size pieces:
Definition of Sexual Harassment. The new regulations define three types of sexual harassment:
Quid pro quo engaged in by a school employee.
Any instance of sexual assault (defined as rape, fondling, incest, or statutory rape), dating violence, domestic violence, or stalking, as defined by certain federal statutes.
Unwelcome conduct that a reasonable person would find so severe, and pervasive, and objectively offensive, that it denies a person equal educational access.
Hearing Requirement. All postsecondary institutions must provide for a Live Hearing as part of the grievance process.
Obligation to Provide Advisors. When the grievance process reaches the Live Hearing stage, both parties must have access to an advisor. If a party does not have an advisor, the school must provide free access to an advisor of the school’s choice. The advisor does not have to be an attorney.
Direct Cross Examination. Party advisors must be permitted to question the other party and any witnesses. The examination must be conducted directly, orally, and in real time by the party’s advisor. Parties are entitled to see each other testify, but do not have to be located in the same space.
Limits on Mandatory Reporting. Reports must be made to the Title IX Coordinator or officials “with authority to institute corrective measures.” Athletic personnel, including coaches and trainers, are no longer considered mandatory reporters.
Schools will be scrambling to interpret and implement the detailed, exhaustive requirements under the new regulations by the August 14, 2020 deadline. There are many unknowns as we move forward, particularly in relation to the impact to students. For example, how will this impact students’ willingness to report potential misconduct? Will students feel comfortable proceeding with a school-provided advisor, or will they feel they have to obtain legal counsel at their own expense? Will the cross-examination and Live Hearing requirements cause parties to withdraw from the grievance process? Further, we do not know if challengers’ lawsuits might delay the currently-scheduled effective date of August 14, 2020. The first lawsuit, courtesy of the American Civil Liberties Union (ACLU), has already been filed challenging the regulations.
However, there is still much that is within the control of schools as they revise their new policies. Namely:
Schools can designate certain staff and faculty as mandated reporters — while the new regulations do not require this, they also do not prohibit it.
Behavior can still be investigated, and potentially sanctioned, through the Student Code of Conduct process. So while some behavior might not constitute “Sexual Harassment” under the new regulations, it might constitute a violation of expected behavior/norms, clearly outlined in the school’s Student Code of Conduct.
Live Hearings can, and should, be run by a strong Hearing Officer who can confidently navigate all parties through the process. Yes, advisors must be permitted to ask questions in real time – this is a huge change with impacts that are yet unknown. However, all hearings will still be run by a Hearing Officer who can stop a line of questioning and who can direct parties not to answer a question if it is deemed irrelevant, harassing, or repetitive.
We must remember: the new regulations do not require hearings to be essentially turned over to party advisors. The Hearing Officer is the party ultimately responsible for making factual findings. Accordingly, all Hearing Officers can and should ensure the questions posed reasonably relate to the allegations.
One consistency amongst all the change is this: schools are still obligated to keep their students safe and able to access their education. As we all navigate these changes – and as courts begin clarifying their interpretations of the changes — we will continue to update you.
Liz Paris, AWI-CH, is a Partner and Hearing Officer Director with Van Dermyden Maddux Law Corporation. Her practice focuses on conducting workplace and Title IX campus investigations. Liz frequently serves as a Hearing Officer in Title IX campus sexual assault cases. She is available as an expert in evaluating Title IX and sexual harassment matters.
The foregoing is for informational purposes only and is not legal advice, nor should it be construed as such.
