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Legally Brief: New Regulations for Title IX

Background: What is Title IX?

Title IX of the Education Amendments Act of 1972 is a federal law that states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Up to now, no formal rules providing specific guidance had been promulgated; the Obama administration’s “Dear Colleague” letter of 2011 and supplementary policy clarification in 2014 defined sexual harassment broadly and held schools liable for episodes they knew about or “reasonably should” have known about. They also asked schools to adopt a “preponderance of evidence” standard in adjudicating cases and discouraged cross-examination and mediation between accusers and accused.

So What’s New?

On Tuesday, May 6th, 2020, under the direction of the Trump administration, the U.S. Department of Education released its Final Rule to implement enforcement of Title IX, which reverses many of the policies of the previous administration and will carry the force and effect of law as of August 14, 2020.

How Do These New Rules Change Things?

  • The new regulations adopt the Supreme Court’s narrower definition of sexual harassment as “unwelcome conduct that is severe, pervasive and objectively offensive” to the reasonable person.
  • The new rules require colleges to hold live hearings during which accusers and the accused can be cross-examined to challenge their credibility.
  • The rules also limit the complaints that schools are obligated to investigate to only those filed through a formal process and brought to the attention of officials with the authority to take corrective action, not other authority figures like residential advisers.
  • Under the new rules schools will also be responsible for investigating only episodes said to have occurred within their programs and activities, not, for instance, apartments not affiliated with a university.
  • Under the new rules, schools will have the flexibility to choose which evidentiary standard to use to find students responsible for misconduct — “preponderance of evidence” or “clear and convincing evidence.”
  • The new rules bolster the role and visibility of the Title IX coordinator, the main point person for facilitating the complaint process, and allow schools to appoint several staff members to the position.
  • Title IX staff members are now required to provide “supportive measures” to accusers even if they choose not to go through with a formal complaint.
  • The rules also emphasize an extensive section to combat retaliation against people who bring forward complaints of sexual misconduct.

The Department of Education has released a comparison chart of the old and new enforcement provisions under Title IX attached here.

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