On May 6, 2020, the U.S. Department of Education released long-awaited final regulations concerning sexual misconduct under Title IX. Unlike previous guidance issued by the Department of Education in 2011 and 2014, the new regulations will have the force of law. The regulations require colleges and universities to establish compliance by August 14, which means institutions will need to move quickly to implement changes to their current processes for handling sexual misconduct claims. There are ongoing legal challenges to the regulations, including a lawsuit filed by attorneys general from seventeen states and the District of Columbia (as of press time) to block the regulations. These lawsuits may result in a delayed timetable for implementation, but, for now, Community Colleges (colleges or institutions) should plan on meeting the August 14 compliance deadline.
This brief focuses on what boards need to know about the critical changes to Title IX regulations and how those changes affect their institutions and students, and more importantly, board policies.
Key Changes
The recently issued Title IX regulations establish a range of new requirements for managing sexual misconduct claims at colleges. Below is a summary of some of the most important changes:
· Investigations and Title IX Staff: A “single investigator model” for Title IX complaints, where one individual manages investigating, adjudicating, and, when necessary, issuing disciplinary sanctions, is no longer permissible. The Title IX complaint process now must involve multiple unbiased officials, including a Title IX Coordinator who receives reports of sexual misconduct and provides complainants with supportive measures, an investigator, and a decision-maker.
· Live Hearings: Under the new regulations, colleges will be required to establish quasi-judicial live hearings with complex protocols as part of their grievance procedures. Advisers of each party’s choice, who may or may not be attorneys, will be able to conduct cross-examinations of the opposing party and/or his/her witnesses; the parties themselves cannot conduct these cross-examinations. If a party refuses to submit him/herself to cross-examination, his/her prior statements may not be considered by the decision-maker in making his/her determination. Critics of the new regulations have expressed that this cross-examination component will have a chilling effect on the submission of complaints.
· Training: Colleges are required to provide training to all personnel involved in the Title IX process, including the decision-maker who will need to be trained on hearsay and the Rape Shield provision, and to make these training materials publicly available either through their websites, or through public inspection if they do not have websites.
· Burden of Proof: Colleges must presume that those accused of sexual misconduct are not responsible for the allegations lodged against them unless and until a finding of responsibility has been reached. When resolving complaints, the burden of proof is on the college to demonstrate, through the gathering and examination of relevant evidence, that a Title IX violation has occurred. An institution can elect to use a “preponderance of the evidence” or a “clear and convincing” evidentiary standard for grievance proceedings; however, this standard must be the same for all formal complaints of sexual harassment whether the respondent is a student or an employee.
· Off-Campus Reports of Sexual Harassment: The new regulations establish that a complaint under Title IX must fall under an institution’s “education program or activity.” If an incident occurs off-campus, crucial questions for determining applicability of Title IX are whether the institution exercised substantial control over the respondent and the context in which the sexual harassment took place. Title IX applies when the incident occurred within facilities owned or controlled by student organizations that are officially recognized by the college (e.g. fraternity or sorority houses). Under the new regulations, only alleged misconduct occurring within the United States is jurisdictional.
· Appeals: Under the new regulations, the decision-maker for any appeals filed cannot be the same decision-maker who oversees the hearing of the original complaint. In addition, both parties now must be given the right to appeal decisions regarding dismissals (of specific claims or complaints as a whole) as well as findings of responsibility.
The Role of Trustees
As fiduciaries of their institutions, trustees play a role in ensuring a safe campus climate, which includes addressing issues of sexual misconduct. Boards also have a duty to mitigate institutional risk for the institution. So what can trustees do to help their institutions adapt to the new Title IX regulations? Trustees should be prepared to ask college administrators and counsel questions in the following areas to facilitate their efforts to comply with the new Title IX regulations.
Engagement with Administration and Legal Counsel on Sexual Harassment Policies
Under the new Title IX regulations, institutions must follow specific procedures whenever a complaint from an employee or student about sexual misconduct falls within the scope of Title IX. However, the Department of Education has clarified that an institution may address sexual harassment affecting students or employees that falls outside of the Title IX standard in any manner that it chooses. Critics of the new Title IX regulations have pointed out that the definition of sexual harassment is narrower than under previous guidance. This presents an opportunity for a board to work with the administration and legal counsel to, not only examine the level of compliance achieved by an institution’s current sexual misconduct policies, but to reassess whether and how the institution wishes to address conduct that falls outside the scope of the final regulations in accordance with its values. Depending on how the institution’s policies are drafted, a claim could be dismissed under Title IX but still move forward under the institution’s sexual harassment policy. Boards should also encourage the administration and legal counsel to draft policies that are clear and easily understandable to avoid discouraging the reporting of complaints through dense, technical language.
Preparation for Quasi-Judicial Proceedings
Under the new Title IX regulations, colleges must adopt highly complex, courtroom-like procedures for internal campus disciplinary hearings on sexual misconduct. As noted above, live hearings are required for grievance procedures, with advocates for both sides being permitted to participate. Trustees should be prepared to work with their administrations to meet the financial challenges involved with establishing quasi-judicial proceedings and the associated institutional positions mandated by the new legal obligations under Title IX.
Evaluation of Impact on Other Institutional Operations
The new Title IX regulations have the potential to affect many different areas of an institution’s operations. For example, the requirement that a school use the same evidentiary standard for Title IX sexual harassment claims filed by students and employees means that there is a potential impact on collective bargaining agreements, employee HR policies, and employee handbooks. Additionally, some states have specific laws mandating the appropriate standard of evidence for sexual harassment claims. Boards should query administrators and legal counsel about actions being taken to handle the ripple effects of the new Title IX changes throughout the institution, beyond meeting the new requirements themselves, as collective bargaining agreements and other written policies and agreements may need updating.
Conclusion
Meeting the new Title IX requirements by the August 14 compliance deadline will require comprehensive, yet swift, collaborative efforts on the part of many individuals at all levels of an institution, including trustees. Colleges across the country will need to adjust their current sexual misconduct policies to adhere to the new regulations, as well as evaluate the level of protection currently afforded students and employees against behaviors that fall outside the scope of Title IX. Trustees should be ready to ask questions and facilitate the overall direction of the institution’s sexual misconduct policies, collaborating with all the relevant stakeholders at the institution and in the community in adapting to this new broad set of rules protecting students and employees from sexual misconduct.
Andrew Laine is association counsel for the Association of Community College Trustees.
Ira M. Shepard is Of Counsel for Saul Ewing Arnstein & Lehr LLP.
Candace McLaren Lanham is a partner at Saul Ewing Arnstein & Lehr LLP.
Disclaimer: This article is offered for general informational purposes only. It is not offered as and does not constitute legal advice.
