The Wait Is Over—DOE Issues Final Title IX Rule Varying in Many Respects from the Proposed Rule Issued in November 2018

Nearly a year after revoking the 2011 Dear Colleague letter, in November 2018 the U.S. Department of Education issued a proposed rule governing sexual misconduct proceedings on campus. According to the DOE’s Fact Sheet, over 124,000 public comments were received during the comment period, which expired at the end of January 2019. The DOE finally issued its Final Rule on May 6, 2020, right as colleges and universities are finalizing policies for the 2020-2021 school year. The implementation of these regulations, which will have the force and effect of law beginning on August 14, 2020, will result in significant changes to the policies of many colleges and universities. Many institutions already modified their policies to address the proposed rule, but the final rule deviates from the proposed rule in many respects. A few important changes between the proposed and final rule are explained below.

Definition of Sexual Harassment. The proposed rule narrowed the definition of sexual harassment colleges are required to address. Whereas the old guidance defined harassment as “unwelcome conduct of a sexual nature,” the proposed rule would defined sexual harassment as either an employee of the institution conditioning a benefit on the individual’s participation in unwelcome sexual conduct, “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,” or “sexual assault.” The final rule retained that definition but also added that dating violence, domestic violence, and stalking as defined by the Violence Against Women Act also qualify as sexual harassment for Title IX purposes.

Definition of Complainant. The proposed rule had defined “complainant” as an individual who reported to the Title IX Coordinator or another individual to whom notice resulted in the school’s actual knowledge, having been the victim of sexually harassing conduct or an individual on whose behalf the school’s Title IX Coordinator filed a formal complaint. The final rule pares down this definition considerably, to simply an individual alleged to be the victim of such conduct.

Formal Complaints. While the proposed rule contemplated that formal complaints be signed, the final rule allows for e-signing a formal complaint or other method of authentication. In addition, rather than requesting initiation of the school’s grievance procedure, the final rule provides that a formal complaint should instead request that the school commence an investigation. 

Reporting. The proposed rule said little about a school’s obligation to inform the educational community as to how to report sex discrimination or sexual harassment. The final rule makes clear that reports may be made in person or by mail, telephone, email, or any other means that results in the Title IX Coordinator receiving the report. 

Safe Harbor No More. The final rule eliminates a safe harbor provision contained in the proposed rule, which had provided that, for informal complaints, if the school offered “supportive measures” to the complainant, it could not be found to have been deliberatively indifferent. The final rule instead simply provides that schools must offer supportive measures in all cases, thereby removing a disincentive for the complainant to utilize supportive measures after a formal complaint is filed. 

Informal Resolution. The proposed rule provided that schools may choose to offer informal resolution options. The final rule clarifies that schools may not offer informal resolution options to resolve an allegation that an employee sexually harassed a student nor may they employ such options to resolve informal complaints. In addition, schools may not mandate participation in the informal resolution process, and a formal complaint may not be informally resolved with an offer of enrollment/employment (or continued enrollment/employment). Finally, the final rule states that a party may withdraw from the informal resolution process any time before agreeing to a resolution. 

Privacy/Confidentiality. The final rule prohibits accessing, considering, disclosing, or otherwise using a party’s health records unless the party provides voluntary, written consent. The final rule also provides that schools must keep confidential the identities of the complainant, the respondent, and witnesses, except as permitted by FERPA, as required by law, or as needed to carry out the proceedings. 

Live Hearings. The final rule mandates that live hearings be conducted by post-secondary schools and states that the decision-maker tasked with determining responsibility cannot also be the Title IX Coordinator or the person who investigated the matter. Whereas the proposed rule had provided that each party may cross-examine the other party and witnesses, the final rule expressly prohibits the parties from conducting the cross-examination themselves. Instead, each party must have an advisor who will ask relevant questions of the other party and witnesses. The proposed rule’s requirement to provide a party with an advisor who is “aligned with the party” has been replaced with a requirement that post-secondary schools provide, at no cost, an advisor of the school’s choosing to conduct cross-examination on behalf of the party. The final rule makes clear that the advisor may be, but need not be, an attorney, and also reiterates that the parties may hire their own advisors. While the proposed rule had provided that cross-examination of a party may be in separate rooms, the final rule goes a step farther and provides that if either party requests it, the parties must be placed in separate rooms for the duration of the live hearing. The final rule adds that the decision-maker must decide the relevance of any question asked on cross-examination before the party or witness answers it. They also provide that while the decision-maker may not give credence to statements by a party who refuses to submit to cross-examination, neither may the decision-maker infer responsibility solely from such refusal. 

Standard of Proof. Under the proposed rule, schools could apply a “preponderance of the evidence” standard instead of a “clear and convincing evidence” standard only (1) if the school applied that standard “for conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanction,” and (2) also applied the standard in evaluating complaints against employees and faculty. The proposed rule eliminated the first requirement. 

Appeal Rights. Whereas the proposed rule had provided that schools could, in their discretion, provide parties the right to appeal the decision-maker’s determination, the final rule provides that schools must give both parties the opportunity to appeal either the dismissal of the formal complaint or a finding of responsibility. Grounds for appeal may, however, be limited to the following: that the school’s procedures were not followed; that the Title IX Coordinator, the investigator, or the decision-maker had a conflict of interest; or to identify new evidence that was not available before the determination was made. 

Non-retaliation. The final rule adds an explicit prohibition of retaliation for the purpose of interfering with Title IX rights and provides that a complaint of retaliation may be grieved per the school’s published grievance procedures for sex discrimination. 

Recordkeeping. The proposed rule mandated certain recordkeeping requirements, including the retention of all records related to investigations, appeals, informal resolutions, and the training of coordinators, investigators, and decision-makers. The proposed rule stated these materials must be retained for three years, but the final rule extends this period to seven years. The final rule requires colleges and universities to create an audio or audiovisual recording or transcript of the hearing, and like other materials, it must be retained for seven years. In addition, the final rule states training materials must be posted on the college or university’s website.

Between now and August 14, 2020, colleges and universities must ready themselves to comply with the DOE’s broad edict that “equitable treatment” be provided to complainants with respect to remedies restoring educational access and to respondents by bolstering due process protections. Accordingly, schools must ensure their policies and procedures satisfy the final rule’s requirements, some of which differ significantly from the earlier proposal. Steps must be taken so that, when the time comes, colleges and universities are ready to handle sexual misconduct proceedings in compliance with the final rule, including providing supportive measures to parties, conducting live hearings with technology that will enable separation between the parties if requested, appointing advisors to conduct cross-examination, and otherwise satisfying the rule’s numerous requirements.

Germaine Winnick Willett and Nate Uhl are attorneys with Ice Miller LLP. Ice Miller has a robust Title IX practice, assisting clients with the development of policies and procedures, counseling clients during sexual misconduct investigations and hearings, and representing clients during reviews undertaken by the Department of Education’s Office of Civil Rights. Willett and Uhl work in Ice Miller’s Indianapolis, Indiana office and can be reached at germaine.willett@icemiller.com, nate.uhl@icemiller.com or (317) 236-2100.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.