In 2011, the Obama administration released guidance, known as the “Dear Colleague Letter,” on Title IX regulations in order to reinforce the obligations that institutions had to prevent and address sexual harassment. In 2017, Secretary of Education Betsy Devos retracted this guidance and created revisions to the existing Title IX regulations. The Department of Education’s changes to the regulations under Title IX of the Education Amendments of 1972 took effect on August 14, 2020. Title IX applies to all colleges and universities that receive any type of federal funding and relates specifically to prohibiting discrimination on the basis of sex, which includes sexual harassment. While universities all over the country are working to safely reopen their campuses amid the COVID-19 pandemic, it is important to stay up to date with the changes surrounding Title IX regulations. These changes will undoubtedly have many implications regarding how colleges and universities are to address claims of discrimination and harassment. Some of the major changes to Title IX regulations are discussed below.
Sexual harassment has been redefined to have a narrower meaning than prior guidance. Under the new Title IX regulations, sexual harassment is defined as “any unwelcome conduct on the basis of sex that a reasonable person would find so severe, pervasive and objectively offensive that it denies a person equal access to the school’s education program or activity.” The prior definition of sexual harassment did not include the “severe, pervasive and objectively offensive” language, which stems directly from the Davis v. Monroe County Board of Education case in 1999. The new definition is meant to place a greater focus on the effect of denying the victim equal access to an education program or activity. In addition, stalking, domestic violence and dating violence are now officially considered examples of sexual harassment under Title IX.
The new regulations also provide updated guidance regarding the responsibility of the institution under Title IX. Prior to the new regulations, institutions were obligated to take action when a student filed a complaint of alleged sexual misconduct, where the school “knows or reasonably should know of the incident.” The updated regulations state that the alleged misconduct must occur in the school’s education program or activity in order for the school to be obligated to take action under Title IX. This includes any building that is owned or controlled by an organization that is officially recognized by the institution. Any misconduct that occurs outside of these areas may be investigated by the institution, as they deem necessary, but is not required by the new Title IX regulations.
The due process under Title IX has been revised to require institutions to allow the students’ advisers to cross-examine any of the parties involved, including witnesses, during live hearings. Under previous guidance, the allowance of cross-examination was highly discouraged. Additionally, school officials are advised to presume students and faculty accused of misconduct innocent until proven guilty.
In addition to changes in the due process, guidance regarding the standard of evidence in Title IX cases has been revised. The Obama administration’s “Dear Colleague Letter” advised college officials to utilize the “preponderance of the evidence” standard when determining guilt of the accused party. This means that there had to be just over a 50 percent chance that the incident occurred based on the evidence presented. Under the new Title IX regulations, institutions can now decide whether to utilize the “preponderance of the evidence” standard or the “clear and convincing evidence” standard. The “clear and convincing evidence” standard requires that the incident must be highly and significantly more likely to be true than not, which greatly increases the burden of proof. Although institutions may decide which standard to adopt, they must apply the same standard to all complaints, regardless of the parties involved (i.e., students, faculty).
The new Title IX regulations present some of the most drastic changes since its inception in 1972. While colleges and universities are operating a little differently these days amid the COVID-19 pandemic, it is essential to ensure your institution is in compliance with the updated regulations under Title IX.
Schneider Downs offers a variety of Risk Advisory Services that can help your institution navigate implementation and assist with your compliance objectives. For any additional questions, contact Schneider Downs.
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