Washington Watch: A look at ED’s final Title IX regs

Photo: Matthew Dembicki

The U.S. Education Department (ED) on Wednesday released its long-awaited final regulations on sexual assaults.

The regulation is scheduled to take effect on August 14, but that implementation date is uncertain as the regulations are expected to draw several legal challenges. ED published its proposed rule in November 2018, and received more than 124,000 comments, including those from the American Association of Community Colleges (AACC).

The regulation marks a high-profile effort by ED to establish formal, legally binding regulations, rather than implementing Title IX’s sexual harassment policies through sub-regulatory guidance. The rule is certain to be highly controversial for its substantial alterations to previous policies, particularly two sets of guidelines advanced by the Obama administration and later withdrawn by President Donald Trump.

The final rule contains many of the same core provisions as the proposed regulation. Most importantly, the final rule still requires colleges to address formal complaints of sexual harassment through a structured legalistic grievance process, including a live hearing with cross-examination.

The final regulations clear up some of the confusion caused by the proposed regulations by clarifying that Title IX proceedings are separate from an institution’s code of conduct.

Kep provisions

Some of the more important provisions include:

  • A definition of campus “program or activity” that limits institutional responsibility under Title IX – colleges are not responsible for incidents that do not occur on their own facilities or those that are under their control, including facilities owned by recognized student groups. This has important implications for community colleges.
  • A three-pronged definition of sexual harassment that includes ”quid pro quo” arrangements between employees and students; conduct that is objectively offensive and pervasive; and sexual crimes, now including domestic violence, stalking and dating violence as defined by the Violence Against Women Act.
  • A general requirement that institutions not be “deliberately indifferent” to sexual harassment cases. The bulk of the regulations spell out what institutions must do to meet this standard. Failure to follow these procedures would constitute a Title IX violation.
  • Institutions are only required to respond to complaints of which they have actual notice, which occurs when the Title IX coordinator or certain other defined individuals become aware of a complaint. In this area, the final rule is much more limited than Obama administration policies.
  • Institutions are required to provide supportive measures to a complainant upon receipt of a complaint. Failure to do so could result in a Title IX violation.
  • A requirement that the Title IX coordinator, investigator and decision-maker be different individuals, thereby prohibiting the “single investigator” model of handling Title IX cases that has been used previously. If an appeal ensues, a fourth individual is required.
  • Institutions must offer both parties the opportunity to appeal the decision reached under the grievance process. This is a change from the proposed regulations, under which providing an appeal process was optional. The final regulations lay out specific bases on which parties can appeal a decision.
  • Institutions may use either a “clear and convincing evidence” or a “preponderance of the evidence” evidentiary standard in Title IX cases but must use the same standard for cases involving students and employees. However, the final regulation allows an institution to use an evidentiary standard in Title IX cases that is different than the one used in other student conduct cases that carry the same penalties.
  • The required live hearings may be “virtual,” and not face to face. Parties may not question each other directly, only through their advisors, and institutions must provide an advisor if one of the parties does not have one.
  • A requirement that a wide variety of records, including a recording of the live hearing as well as training materials be kept for seven years.

AACC will sponsor a webinar on the regulations next Wednesday, May 13, at 3:00 PM EDT.

About the Author

Jim Hermes / David Baime
Jim Hermes is associate vice president of government relations at the American Association of Community Colleges (AACC). David Baime is AACC's senior vice president for government relations and policy analysis.