Impartial Investigations in the Era of the New Title IX Final Rule

09-01-2020

On May 6, 2020, the U.S. Department of Education (DOE) released the highly anticipated revised version of Title IX of the Education Amendments of 1972 (Title IX) regulation (also referred to as the Title IX “new or final” rule).[1] The revised regulation, which became effective on August 14, 2020, is considered an overhaul of previous Title IX sexual harassment procedures. Consequently, recipients (i.e., educational institutions of federal financial assistance from the DOE[2]) were left with a very short time to prepare for compliance. Coupling that with an unprecedented pandemic and uncertainty about the functionality of the operating status of many educational institutions this academic year, many Title IX administrators and other personnel (who already have challenging roles), found themselves slightly panicking about effectively carrying out the new Title IX procedural requirements to ensure their institution’s appropriate implementation of the final rule.

Today, we will identify a few major differences between the current regulation and the one effective prior to August 14^th, when investigating claims of sexual misconduct under Title IX. We will also discuss steps that can set the tone for the completion of a successful, impartial Title IX investigation, now codified and required by the new Title IX regulation.

Current Litigation

If you are feeling overwhelmed about the new rule, you are not alone. To date, organizations such as the American Civil Liberties Union (ACLU) and the National Women’s Law Center (NWLC), in addition to attorneys general from 17 states and the District of Columbia (D.C.) have challenged the final rule, primarily seeking injunctive relief. Although litigation is still underway, a determination was recently rendered in the U.S. District Court for the District of Columbia involving the case filed by the states, and it could be indicative of how the courts might address implementation of the new rule in other cases in the future.

In their lawsuit, filed in June of 2020, the state attorneys general raised a number of claims, most notably (especially in light of the current pandemic) that it was “arbitrary and capricious” for the DOE to select an implementation date of August 14, 2020 for the final rule. In an opinion issued August 12, 2020, Judge Carl Nichols of the D.C. District Court denied the states’ request for injunctive relief, in spite of recognizing the “obvious seriousness of the COVID-19 pandemic.”[3] Judge Nichols expressly stated, “…the pandemic has presented a series of serious and difficult questions about whether, to what extent, and how school activities will resume in the fall; and the substantial additional work burdening schools as they consider and address these issues. In fact, for these and other reasons, a later effective date [for the final rule] might have been a preferable policy decision. But the [DOE] considered the pandemic as well as the other concerns raised by commenters in the [f]inal [r]ule, and the Court cannot conclude that the [states were] likely to prevail in demonstrating that the August 14, 2020 effective date [was] arbitrary and capricious.” The judge also noted his decision was influenced by the fact that schools have been on notice for approximately two years awaiting publication of the final rule (or at least something like it).[4]

Therefore, for now, the new Title IX regulation is here to stay. So, let’s delve into what this means.

The Title IX Claim - Definitions and Standards

Title IX regulation, pre-August 14, 2020

An individual may pursue a claim of institutional noncompliance with the Title IX regulation through private litigation or administratively, meaning the allegedly aggrieved person can: 1) file a private lawsuit in federal court seeking monetary damages or injunctive relief; or 2) file an individual complaint with the DOE’s Office for Civil Rights (OCR), the federal government’s enforcement arm responsible for ensuring all educational institutions receiving financial assistance from the DOE are appropriately complying with the requirements of Title IX and other federal civil rights laws.

Prior to the new rule, the regulation itself was silent, and the administrative standards for determining compliance with the Title IX regulation with regard to sexual misconduct allegations were outlined and explained solely via policy guidance, including “Dear Colleague Letters (DCLs)” and the well-known 2001 Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (2001 Guidance). The 2001 Guidance defined sexual harassment as “conduct of a sexual nature” which is “sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from the education program or activity…” derived from the principles of Title VII of the Civil Rights Act of 1964 (Title VII) caselaw.[5] Moreover, OCR policy guidance further provided that the standard of evaluating the nature of a school’s responsibility to address sexual harassment (whether or not an individual filed a complaint of alleged sexual misconduct or otherwise asked the school to take action), was if the institution knew or reasonably should have known of the incident of sexual misconduct. If so, the school must have taken steps to respond appropriately.

Based on this definition, Title IX standards for private actions in federal court seeking monetary damages were more stringent. This is due to the Supreme Court expressing in a 1999 Title IX case, Gebser v. Lago Vista Independent School District (Gebser), that it was concerned with the possibility of “a money damages award” against a school for sexual harassment about which it had not known (referring to the above-referenced “reasonably should have known” standard). In contrast, the Court noted that the process of administrative enforcement required the DOE to make schools fully aware of potential Title IX violations, and seek voluntary corrective action before pursuing fund termination.[6]

Title IX regulation, Now

The new Title IX regulation defines sexual harassment as the following:

1. Any instance of quid pro quo harassment by a school's employee.
2. Any unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal educational access to a school’s education program or activity (against a person in the U.S. only; study abroad programs are not included).
3. Any instance of sexual assault, dating violence, domestic violence, or stalking as defined in the Jeanne Clery Act of 1990 (Clery) and the Violence Against Women Act (VAWA) Amendments of 2013.[7]

Under the new rule then, sexual harassment isn’t broadly defined as “conduct of a sexual nature,” and now aligns with the federal employment law definition of sexual harassment where monetary compensation is typically sought as a remedy. In addition to utilizing the Supreme Court’s definition of sexual harassment, the new rule also now uses the liability standard the Court set forth in Davis v. Monroe County Board of Education (Davis). In Davis, the Court said that when a school official with the authority to institute corrective measures on the school’s behalf has actual knowledge of sexual harassment (as defined above) that occurred within the school’s education program or activity, against a person in the U.S., the school must respond. The school in question must have substantial control over both the environment and the alleged harasser. Moreover, a school is only liable for a Title IX violation when its response to sexual harassment as defined is clearly unreasonable in light of the known circumstances (i.e., the school is deliberately indifferent to the harassing conduct), resulting in “victim-students [being] effectively denied equal access to an institution’s resources and opportunities.”[8]

Although the definitions and standards under the new rule have shifted towards the requirements and standards for private lawsuits, the potential administrative remedies remain the same. When an institution is determined to be out of compliance, administrative corrective action sought by OCR could include specialized training, compensatory educational services, updated grievance procedures, etc. If the institution fails to implement corrective action determined by OCR to be necessary for the school’s compliance, DOE funding can be terminated. However, this rarely happens because typically, schools are eager to comply.

The Effects of the New Rule

As mentioned, the final rule brings a myriad of procedural changes, significantly affecting how educational institutions are directed to enforce the Title IX regulation with regard to sexual misconduct claims. Below are examples of differences Title IX staff may encounter when processing Title IX sexual harassment complaints received during the 2020-21 academic year under the new rule:

1. Narrowed scope and application of the Title IX regulation
   1. A school must respond to sexual harassment only when:
      1. The school’s Title IX Coordinator (or any other college or university official who has the authority to institute corrective measures on behalf of the school[9]) has actual notice or knowledge of the sexual harassment.
      2. The alleged harassment occurred within the school’s education program or activity (g., classes, school sponsored events, etc.), against a person physically in the U.S. This means alleged harassment occurring during study abroad programs are no longer covered by the Title IX regulation if the alleged acts occur off of U.S. soil.
   2. Additionally, a school is only liable for a Title IX violation when its response to the sexual harassment or sexually hostile environment is clearly unreasonable in light of the known circumstances. This is known as the deliberate indifference standard. Some evaluating factors to determine whether a school is deliberatively indifferent include whether:
      1. The Title IX Coordinator promptly contacted the complainant to discuss the availability of supportive measures (with or without filing or pursuing a formal complaint) and considered the complainant’s wishes with respect to supportive measures; and,
      2. The school offered supportive measures.
   3. Increased evaluation of conduct falling outside of Title IX’s jurisdiction pursuant to other policies and procedures
      1. For example, the alleged behavior might fall under the Student Code of Conduct or Employee Relations Policy.
      2. State law may also apply (as of this writing, approximately 5 states have some type of “Title IX” state legislation, with more likely following suit in the future).
      3. Be aware of and reconcile any potential conflicts between the new Title IX regulation and other applicable policies.
2. Additional training efforts, including the learning of new procedural requirements
   1. As outlined in the new rule, most schools will now have a three-person team consisting of: a Title IX Coordinator, an investigator, and an adjudicator(s). The Title IX Coordinator or investigator cannot serve as the adjudicator or person(s) making appeal determinations, and all individuals MUST act in an impartial manner.
   2. In addition to the three-person team, a few provisions of the final rule indicate the following must be provided:
      1. Relevant training materials to be posted on the school website.
      2. “Live” hearings for each complaint, with an opportunity for cross-examination.
      3. Advisors for both the complainant and the respondent (in the event the complainant does not have an advisor, the college or university must provide one).
      4. Mandatory complaint dismissal categories

Special Considerations During COVID-19

As we all know, COVID-19 reached pandemic status earlier this year and has changed our daily way of life in major ways—how we interact, how we complete daily tasks, and even how colleges and universities educate and accommodate students and staff.

Since many campuses won’t be physically opening their doors this fall, Title IX officials must get creative with effective and timely implementation of the new rule’s requirements. This means policies must be reviewed and revised; the Title IX section of school websites must be audited and updated; and, meaningful training of staff and students not returning physically to campuses must be successfully executed.

The DOE has not released prescriptive guidance regarding the specifics of Title IX enforcement in the age of this pandemic, but Department officials have made it clear through press releases and its stance in litigation, that there is an expectation the new Title IX regulation will be fully implemented in educational institutions as of August 14, 2020. Consequently, any institution not in compliance by that date may be found in violation of Title IX by the DOE.

Lastly, schools should also anticipate an increase in incidents alleging harassment via social media, text message, and other virtual means while students and staff are studying or working remotely. Whether or not the acts rise to the level of sexual harassment as defined by the final rule will be determined on a case-by-case basis, but it is important for school officials to begin thinking ahead with regard to the potential complexity of evaluating and addressing the nuances of these types of claims.

The Investigation Plan

Benjamin Franklin told us many years ago that “If you fail to plan, you plan to fail.” When conducting an impartial investigation, skillfully crafting an investigation plan is extremely important. Properly planning allows involved personnel to be on one accord, ensures staff are following the new procedural requirements as outlined, and keeps the investigator on track at all times.

An effective checklist for a Title IX complaint might look like the following:

This chart is not exhaustive of all necessary or helpful components of an impartial Title IX investigation. Additionally, it is not meant to take the place of the formal training now required to be posted on a school’s website. Rather, the checklist provides a solid foundation upon which to build Title IX case planning and compliance efforts.

The Neutral Investigator

In addition to thorough case planning efforts, properly conducting investigations under the new Title IX regulation might involve engaging an unbiased, outside investigator who has no preconceived biases concerning the parties involved and is skillfully qualified to conduct impartial investigations as now required by law. Investigative staff working on Title IX complainants should be proficient in asking the appropriate, probing questions so that the acquired facts can be properly conveyed to decision makers and high-level executives within the educational institution.

A concern a number of colleges and universities will also face is not having adequate staff members to seamlessly enforce the new Title IX procedural requirements. This rings particularly true for institutions that recently created Title IX offices with full-time Title IX Coordinators and/or very small institutions with limited resources. Having an outside investigator can be helpful in these scenarios as well.

Lastly, schools can and should anticipate increased instances where those investigating Title IX cases may be required to objectively evaluate and investigate additional issues, due to a narrower definition of sexual harassment and limitations of Title IX’s jurisdictional authority in the new regulation. Hiring an outside practice group in those instances again can be invaluable based on the breadth of experience the outside consultants bring to the table, collectively and individually. Whether a school needs to bring in a seasoned fact-finder to ensure the administrative requirements of the new Title IX regulation are properly executed, secure training for current faculty and staff, or retain an expert witness in anticipation of the potential uptick in private lawsuits seeking monetary damages, it should take care in choosing its resources.