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By: Bill Buechner
The Department of Education (“DOE”) recently issued proposed regulations regarding how elementary and secondary schools and institutions of higher education should respond to complaints of sexual harassment and sexual assault. As a whole, the proposed regulations seek to strengthen the due process protections for students accused of sexual harassment and/or sexual assault, while at the same time proposing measures that the DOE believes would encourage students who believe they are victims of sexual harassment and/or sexual assault to report the conduct and seek measures that would preserve or restore their access to an educational program or activity.
The proposed regulations follow the DOE’s decision in 2017 to rescind the 2011 Dear Colleague Letter and the 2014 Questions and Answers on Title IX and Sexual Violence guidance previously issued by the DOE under the Obama Administration. At that time, the DOE also issued temporary guidance set forth in its Questions and Answers on Campus Sexual Misconduct, while also stating that it intended to promulgate regulations addressing these issues.
The proposed regulations, as well as an executive summary and an in-depth explanation of the rationale for the proposed regulations have been published in the Federal Register at 83 FR 61462 and may be reviewed here. Briefly discussed below are the most significant proposed provisions:
The proposed regulations would define sexual harassment as including (a) quid quo pro harassment (promising education benefits in exchange for an individual’s participation in unwelcome sexual conduct); (b) sexual assault, as defined by existing Clery Act regulations; and (c) “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” In contrast, the 2011 Dear Colleague Letter defined sexual harassment as “unwelcome conduct of a sexual nature.” The DOE explains that its proposed definition of sexual harassment is consistent with Supreme Court precedent assessing Title IX liability in private litigation and would provide a uniform standard. The DOE also emphasizes that Title IX is only violated when sex discrimination has the effect of denying access to an educational program or activity.
The proposed regulations state that a school would only be subject to Title IX liability if it responds to known sexual harassment in a way that is deliberately indifferent. The proposed regulations define deliberate indifference as “clearly unreasonable in light of the known circumstances.” The DOE explains that this standard of liability tracks the standard set forth in Supreme Court precedent addressing the liability of parties in private litigation. Prior guidance and the DOE’s Office of Civil Rights prior enforcement practices took the position that a school’s response should be judgment under a reasonableness standard.
The proposed regulations also would provide that a recipient must have actual knowledge of conduct that constitutes sexual harassment in order to be subject to Title IX liability, as opposed to the imputation of knowledge through constructive knowledge or respondeat superior. Actual notice is defined as knowledge by an official who has authority to institute corrective measures on behalf of the recipient. The proposed regulations also define actual knowledge as notice of sexual harassment to a school’s Title IX Coordinator or (at the elementary and secondary school level) a teacher.
The proposed regulations would create a two-track complaint procedure, out of recognition that, for a variety of reasons, a complainant may not want to a file a formal complaint. A complainant may notify the school (verbally or in writing) of conduct that could constitute sexual harassment without filing a grievance or pursuing charges against the alleged perpetrator. If the complainant chooses this option, the school would not be obligated to investigate the allegations, but would be obligated to provide supportive measures, including a non-exhaustive list of measures such as counseling, extension of deadlines for completing course work, campus escort services, mutual restrictions on contact between the parties and changes in work or housing locations. The supportive measures are to be non-disciplinary and non-punitive and reasonably available without cost or charge, and would be intended to restore or preserve the complainant’s access to his or her education. Colleges that provide these supportive measures and respect a complainant’s wishes not to file a formal complaint would be entitled to a safe harbor against a finding of deliberate indifference.
The proposed regulations recognize that, at the elementary and secondary school level, it may be necessary in some instances for a Title IX Coordinator to file a formal complaint even if the complainant does not to file one. At the college level, a Title IX Coordinator would be obligated to file a formal complaint if the school has actual knowledge regarding reports by multiple complainants of conduct by the same respondent that could constitute sexual harassment.
The complainant may also submit a formal complaint in writing alleging sexual harassment and requesting that the school activate its grievance process. The formal complaint must be signed by the complainant or the Title IX Coordinator. Schools that follow the proposed regulations’ procedures for responding to a formal complaint would be entitled to a safe harbor against a finding of deliberate indifference.
The proposed regulations provide that, if a formal complaint is filed, the school must provide written notice to the parties who are known. The written notice must include, among other things, identities of the parties involved in the incident, the conduct alleged, the date and location of the alleged incident and a statement that the respondent is presumed not responsible for the alleged conduct and a determination regarding responsibility will be made at the conclusion of the grievance process.
The proposed regulations would give the parties the right to inspect any documents or evidence collected by the school during the investigation. Parties would also have the right to review the initial draft of the investigation report prepared by the investigator and provide a written response for the investigator’s consideration before completion of the investigation report. The proposed regulations would also give each party equal opportunity to have an advisor of his or her choice present at various stages of the grievance process, subject to restrictions that would be equally applicable to each party. In addition, the proposed regulations would require that the investigator, coordinator and decision-maker not have a conflict of interest or bias against the complainant or respondent. The proposed regulations would require live hearings for colleges and would allow (but not require) live hearings for elementary and secondary schools.
One of the more controversial issues is whether a respondent should have the right to cross-examine the complainant. The proposed regulations answer this question by stating that due process requires a right to cross-examination of both parties. However, the proposed regulations provide that, at the college level, the cross-examination must be conducted by the party’s advisor rather than the party. Also, the proposed regulations would allow either party to request that the parties be placed in separate rooms during cross-examination while observing the questioning live via technological means. Moreover, the proposed regulations mirror rape shield laws in prohibiting questions regarding the complainant’s sexual history, except the complainant’s history with the respondent to show consent, or to show that someone other than the respondent engaged in the alleged conduct.
At the elementary and secondary school level, the proposed regulations recognize that cross-examination of the parties during a live hearing may not be appropriate. If school officials determine that a live hearing is not appropriate, the proposed regulations provide that each party must be allowed to pose written cross-examination questions to the opposing party or to witnesses through the decision-maker, including questions challenging credibility and follow-up questions.
Another controversial issue is what standard of proof is required to establish that a complainant was the victim of sexual harassment or sexual assault. The 2011 Dear Colleague Letter stated that a preponderance of the evidence standard (meaning more likely than not) was appropriate because this is the standard in most civil cases. The proposed regulations state that schools may decide whether to apply a preponderance of evidence standard or a clear and convincing evidence standard (meaning it is highly probable or reasonably certain that the alleged conduct occurred). However, the proposed regulations would allow schools to apply the preponderance of evidence standard only if that standard is applied to (1) other student conduct code violations that carry the same disciplinary sanction; and (2) respondents who are employees, including faculty.
The proposed regulations would require that the decision-maker issue a written determination that includes findings of fact and rationale for the conclusion as to each allegation. The proposed regulations would require an objective evaluation of all the relevant evidence and would prohibit credibility determinations based on a person’s status as a complainant, respondent or witness. The proposed regulations would require the written determination to state any sanctions imposed against the respondent and any remedies provided to the complainant to restore or preserve access to the school’s education program or activity. Most importantly, the proposed regulations state that a school will not be found to be deliberately indifferent simply because the DOE would have reached a different conclusion based on its own weighing of the evidence. The proposed regulations provide that the decision-maker must be a different person than the Title IX Coordinator and the investigator.
The proposed regulations would allow (but not require) schools to offer an appeal for an aggrieved party. However, if an appeal is made available, it must be made available to both parties. The proposed regulations provide that the decision-maker on appeal must be different that the Title IX Coordinator, the investigator or the initial decision-maker.
The 2011 Dear Colleague Letter prohibited alternate dispute resolution in instances of alleged sexual assault. The proposed regulations would permit informal resolution, such as mediation, if the parties provide their written consent. The proposed regulations would require notice as to the requirements of the informal resolution process, including the circumstances under which it would preclude the parties from resuming a formal complaint arising from the same allegations, and other consequences resulting from participation in the informal resolution process.
As stated above, these are only proposed regulations. The public will have until January 28, 2019 to submit comments. After receiving and reviewing these comments, the DOE will promulgate final regulations.
For additional information, please do not hesitate to contact Bill Buechner at [email protected].