The Office for Civil Rights of the U.S. Department of Education recently published guidance interpreting the 2020 amendments to the Title IX Regulations. The document, entitled “Questions and Answers on Title IX Regulations on Sexual Harassment (July 2021),” offers direction on a range of issues, from the timing of the investigative process to the interplay of remote learning. We have compiled a summary of relevant provisions for parents and students to consider. Likewise, we have added some of our thoughts as to whether some of the responses will invite controversy and perhaps even litigation.
General Obligations Under New Title IX Requirements
The 2020 Title IX amendments added specific, legally binding steps that schools must take in response to notice of alleged sexual harassment. The amendments encourage schools to undertake preemptive efforts to prevent sexual harassment from occurring.
The 2020 amendments changed two requirements for elementary and secondary schools and postsecondary schools:
- Elementary school and postsecondary school employees must respond to all reports of sexual harassment
- Only postsecondary schools are required to have a live hearing related to sexual harassment allegations, where the accused is entitled to have an advisor (who can be an attorney) to cross-examination witnesses
The 2020 amendments also require that all students in postsecondary school be provided with an advisor for the purposes of conducting cross-examination of witnesses during a live hearing. An advisor can be a friend, family member or an attorney. Schools ultimately have discretion in the rules of decorum governing advisors and can remove an advisor for not following the applicable rules.
The Changing Definition of Sexual Harassment
Sexual harassment is unwelcome conduct on the basis of sex that meets one or more of the following categories:
- Quid pro quo sexual harassment, where a school employee offers something to an individual in exchange for sexual conduct
- The definition of sexual harassment in the Davis v. Monroe County Board of Education case, which means that the conduct must be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education and activity.
- The definitions of sexual assault, dating violence and domestic violence as listed in the Clery Act and Violence Against Women Act (VAWA) definition
The 2020 amendments provide schools with the flexibility to adopt their own definitions of consent, and the discretion to respond to reports of sexual misconduct that fall outside of the scope of conduct covered by the Title IX grievance process. This response essentially reverts back to the 2011 guidance, where schools would adjudicate Title IX allegations that occurred outside of the United States or outside of a college’s education or extracurricular activities. We predict that there will be litigation of the response to the expansion of the jurisdictional limits of a college to enforce their own sexual assault policies.
Remote Learning and the Internet
The amendments clarify that remote learning platforms and technology fall within an institution’s purview for policy enforcement. This includes sexual harassment occurring on school computers, devices, software and programs. Relevant conduct that an educational institution can regulate is not limited to school devices. A school can discipline students for actions taken on personal devices (like cell phones) as long as that personal device is used to perpetrate online harassment during class time. The relevant analysis is whether the online harassment occurred during an educational program or activity “over which a school exercised substantial control over the respondent and the context.” Again, this clarification opens up quite a can of worms, ie., how does online activity of a social nature tie to a school’s activities.
Furthermore, interviews and live-hearings during the Title IX process do not have to occur in-person. The 2020 amendments state participants in the grievance process, including parties and witnesses, can participate virtually, with technology enabling participants to simultaneously hear and see each other. If a student requests a virtual hearing, the school must provide the student with this option without questioning their reasoning.
Response to Allegations of Sexual Harassment
When a school has actual knowledge of sexual harassment, it must “respond promptly in a manner that is not completely indifferent.” A school must respond to all reports of alleged misconduct, even if school officials are not certain whether the conduct occurred. The Title IX coordinator must provide both complainant and respondent with supportive measures and following the grievance process set forth in the amendments.
The Title IX Coordinator has the discretion to file a formal complaint on behalf of a complainant that is not associated with the school. It does not take a crystal ball to anticipate that this response invites litigation over whether a college that files a charge on behalf of a non-student violates Title IX in that a college only has jurisdiction over current students. A grey area exists when dealing with a former student.
Students can still file formal complaints even if the student:
- has withdrawn because of the sexual harassment but has plans to re-enroll after the school’s investigation,
- has graduated but intends to apply to a new program, or intends to participate in alumni activities
- is on a leave of absence and is still enrolled or intends to re-apply after the leave of absence
- has applied for admission.
If a respondent to an investigation is no longer enrolled in the school, the school has discretion to decide whether they want to dismiss a complaint or continue to pursue the complaint.
Timeframe of the Sexual Harassment Grievance Process
Previously, schools had 60 days to complete the grievance process resolving sexual harassment complaints. The amendments have abolished this time-period requirement, instead stating that the grievance process should be “reasonably prompt,” while allowing each institution discretion to “balance promptness with fairness and accuracy.”
Schools have significant latitude in creating hearing rules; however, the hearing rules must apply equally to both parties.
The Importance of a Neutral Decision-Maker
Investigators and decision makers should serve impartially and should never assume that the complainant or respondent is lying. Schools are required to presume that a respondent is not responsible for a violation until there is a determination of responsibility. Likewise, a school should not presume that the alleged harassment did not occur.
The amendments additionally offer protection for complainants and respondents from being unfairly judged for their inability to remember certain details of an incident. Directives state “decision-makers must be trained to serve impartially without prejudging the facts.”
Can a Student be Disciplined for Filing a False Complaint?
A student can only be disciplined for filing a false complaint if a school determines that the student filed the complaint in bad faith. A finding of responsibility by a school, alone, is not enough to conclude that a party acted in bad faith. A school must find that a student made a materially false statement in bad faith during the course of a Title IX investigation. If a school charges a student with a code-of-conduct violation without a finding of bad faith, this could constitute retaliation by the school.