New Title IX Regulations

For some time, educational institutions have awaited a revision of Title IX of the Education Amendments of 1972 (Title IX). This past May, the U.S. Department of Education (DOE) unveiled the new Title IX rule, which became effective on August 14, 2020. Replacing previous Title IX sexual harassment procedures, the new regulation (also called the “final rule”) created important changes to the way Title IX investigations will be conducted going forward. 

In the words of the Department of Education, its new Title IX regulation does the following:

• Defines sexual harassment to include sexual assault, dating violence, domestic violence, and stalking, as unlawful discrimination on the basis of sex

• Provides a consistent, legally sound framework on which survivors, the accused, and schools can rely

• Requires schools to offer clear, accessible options for any person to report sexual harassment

• Empowers survivors to make decisions about how a school responds to incidents of sexual harassment

• Requires schools to offer survivors supportive measures, such as class or dorm reassignments or no-contact orders

• Protects K-12 students by requiring elementary and secondary schools to respond promptly when any school employee has notice of sexual harassment

• Holds colleges responsible for off-campus sexual harassment at houses owned or under the control of school-sanctioned fraternities and sororities

• Restores fairness on college and university campuses by upholding a student’s right to written notice of allegations, the right to an advisor, and the right to submit, cross-examine, and challenge evidence at a live hearing

• Shields survivors from having to come face-to-face with the accused during a hearing and from answering questions posed personally by the accused

• Requires schools to select one of two standards of evidence, the preponderance of the evidence standard or the clear and convincing evidence standard,[1] and to apply the selected standard evenly to proceedings for all students and employees, including faculty

• Provides "rape shield" protections and ensures survivors are not required to divulge any medical, psychological, or similar privileged records

• Requires schools to offer an equal right of appeal for both parties to a Title IX proceeding

• Gives schools flexibility to use technology to conduct Title IX investigations and hearings remotely

• Protects students and faculty by prohibiting schools from using Title IX in a manner that deprives students and faculty of rights guaranteed by the First Amendment.

Challenges to the New Regulations

The timing of the final rule’s announcement, and the short period educational institutions had to prepare for compliance, have led to nation-wide challenges, particularly by 17 states’ attorneys general.  At this point, however, court rulings indicate the regulations will stick.

The impact will be felt far and wide. The final rule applies to almost all educational institutions including post-secondary schools of higher education such as undergraduate and graduate school, vocational and professional schools, as well as preschools, elementary schools, and high schools (and even to private elementary and secondary schools). Some of the changes in the new rule apply equally to all institutions, while some apply differently according to the type of educational body.

Key Things to Note About the New Title IX Regulations

1)     Separation of Roles: Coordinator, Investigator, Adjudicator

In the past, the school’s Title IX Coordinator or Investigator could adjudicate a complaint of sexual harassment.  Now, the adjudicator may not be the same person as the Title IX Coordinator or Investigator. And arguably, in some cases, the investigator should be someone outside the school (more on this below). 

The Title IX Coordinator will remain the person who organizes the response to complaints, but note that notifying a school official of sexual harassment is not enough to trigger the school’s obligation to investigate (although it does obligate other measures under Title IX such as outreach to the alleged victim, etc.). Instead, a document must be filed by a complainant (or signed by a Title IX Coordinator) alleging sexual harassment by a respondent and requesting that the school investigate the alleged sexual harassment. The complainant must be participating or engaging in the education program or program of the school (or attempting to do so) while filing the complaint.

2)     Investigators Must Be Impartial; In Many Cases Outside Investigators Should Be Considered

Paramount in the new regulations is the idea of fairness, both to the accuser and accused.  For example, the regulations specify that the respondent must be assumed “not responsible” for the alleged conduct until the grievance process is concluded and the hearing officer finds otherwise. The regulations also specifically state that the complaint investigator must be impartial and unbiased, and encourages schools to use outside investigators when needed to avoid conflict of interest.

In its preamble, the new regulation states:

“The Department understands commenters’ concerns that the final regulations work within a framework where a recipient’s own employees are permitted to serve as Title IX personnel, and the potential conflicts of interest this creates. The final regulations leave recipients flexibility to use their own employees, or to outsource Title IX investigation and adjudication functions, and the Department encourages recipients to pursue alternatives to the inherent difficulties that arise when a recipient’s own employees are expected to perform these functions free from conflicts of interest and bias.”

Therefore, the Department arguably anticipates that, in many cases, campuses will need to hire an outside investigator in order to investigate complaints in a manner free from conflicts of interest and bias.

3)     The Standard of Evidence to Be Applied Will Vary by Institution

Unlike workplace investigations, which generally employ a preponderance of the evidence standard, educational institutions are now free to designate either this standard, or the “clear and convincing” standard as the foundation of the grievance process.[2] Therefore, in some cases, a Title IX investigator must let go of the lower preponderance of the evidence standard and consider the much higher standard of “clear and convincing” in making her findings.

What Does This Mean for Investigators of Title IX Complaints in 2021?

Training.  Lots of training for investigators.  Luckily, the regulations also require that Title IX investigators receive training and outline what sorts of training they must receive. 

Even skilled workplace investigators need to complete such training and, in particular, should keep in mind that Title IX investigations are not ordinary investigations of the workplace variety. As just one example, both accused and respondent will have the right to review the investigator’s file and to respond before the investigator turns in her report—a radically different process from workplace investigations where neither complainant nor respondent knows who else an investigator has spoken with, specifics of her findings, etc.

A good Title IX training will also cover the different standards of proof, the importance of due process for both complainant and respondent, and the unique questions that should be asked in order to deliver a meaningful file to the Title IX adjudicator. Understanding what occurs at a Title IX hearing and mediation is also important in investigator training (and required by the final rule). 

Finally, any Title IX investigator should invest in a class in trauma-informed interviewing techniques – while keeping in mind the requirement of impartiality. Given the unique nature of interviewing a complainant suffering from the impact of an assault, interviewing techniques must be radically different from those of standard workplace or police investigative interviews. As just one example, survivors of an assault tend to recall details differently, and may have trouble laying out information chronologically, so investigators would do well to learn different methods to work with them.

[1] However, Title IX investigations in California must use the preponderance of the evidence standard.

[2] Per our note above, this choice will not be relevant in California.

Author: Diana Maier, Partner (and Title IX investigator, mediator, and hearing officer)

The Maier Law Group is a boutique employment and data privacy firm that specializes in conducting workplace and Title IX investigations, providing executive coaching, training employees, mediating both courtroom and workplace disputes (between two conflicting employees), and advising and counseling employers on HR and data privacy issues.

This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly at info@maierlawgroup.com.