New Title IX regs change how institutions respond to sexual harassment allegations

Attorney Q&A with Paige Good and Adrienne Martinez

The U.S. Department of Education’s long-awaited changes to Title IX regs take effect August 14th, impacting educational institutions nationwide. Title IX of the Education Amendments Act of 1972 protects individuals from discrimination based on sex in education programs and activities. It covers recipients of federal financial assistance, including elementary and secondary schools, as well as postsecondary institutions and institutions of higher education.

These new regulations significantly change how covered educational institutions must respond to allegations of sexual harassment. In this LINC Q&A video, McAfee & Taft lawyers Paige Good and Adrienne Martinez  discuss the most notable changes, the practical impact on these institutions and what administrators need to be doing now to be compliant.

Transcript

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Paige Good: Previously, the way the regulations stood there were really only two obligations placed on covered institutions and that was, one, you need to designate an employee to handle Title IX compliance and Title IX complaints and, two, you need to have a grievance procedure in effect to handle the Title IX complaints as well. From there, the Department of Education issued guidance documents, throughout the years and that’s how covered institutions knew what they were supposed to do with respect to Title IX compliance. So these final regulations which came out in May of 2020 and which will become effective August 14, 2020, and there are some pretty sweeping changes involved in these final regulations.

Q: What are the most impactful changes to Title IX with these new regulations?

Paige Good: One of the major changes in the final regulations is the concept of actual knowledge, so previously under the Department of Education guidance, institutions were held responsible for allegations of sexual harassment of which they knew or should have known and basically that should have known component is no longer in play with these final regulations. The old guidance required institutions to have a responsible employee to whom alleged victims could go to report sexual harassment, now for post-secondary institutions these individuals will need to go to officials with authority and these are individuals who have been designated by colleges and universities to specifically handle Title IX complaints. They are individuals who have the ability to actually take corrective measures on behalf of the institution, so of course this includes your Title IX coordinator, but it also includes those authorized representatives of the institution.

This narrows the class or the pool of individuals to whom alleged victims can go to report complaints. And so it sort of changes, at least for post-secondary institutions, the scope of how an investigation might start and when an institution actually is charged with actual knowledge to where they have to investigate and start the grievance procedure. While the Department of Education may have narrowed the scope of when the obligations of an institution become triggered to investigate, they expanded some requirements for institutions and other ways. So for example, one of the big focuses behind the final regulations has been on due process — basically, incorporating new due process measures especially for post-secondary institutions to make the grievance process more fair and equitable.

Q: How have the new regs change “due process”? What now constitutes a “fair hearing”?

Adrienne Martinez: One of the most notable changes that we’re seeing is this requirement for a live hearing, and for cross examination in the process of a live hearing. Most colleges and universities are not unfamiliar with having some sort of hearing process. They may have administrators such as faculty and staff that they’ve trained to hear sexual harassment and other kinds of sexual misconduct hearings. What we’re seeing now in the new regulations is the requirement that these hearings be live. So whether that’s in person or via some other kind of technology, most importantly that participants are given the opportunity to be there in person or to participate in a live manner in real time, and have the opportunity to both answer and ask questions of other hearing participants. With the cross examination requirement, while most institutions, most colleges and universities likely had some form of a means of asking questions during a hearing, whether that be through a panel or allowing participants to submit questions and writing, the new regulations will require that that question process be done by live means.

We’re also seeing that where institutions may be familiar with allowing parties to have an advisor accompany them to the hearing process, the new regulations will require that institutions allow that advisor to participate in a live role as well. So former guidance described the role of an advisor more as a potted plant; they were permitted to attend, they were permitted to advise their party of, of maybe questions to ask or how to respond to questions, but they weren’t given the opportunity to speak on behalf of the person that they were advising. What we see in these new regulations as a shift there where advisors may have that more active role. Institutions may want to be prepared for advisors in that role to be attorneys and for attorneys to have that opportunity to participate in a more direct way than what we’re used to seeing before.

The significance of these new changes is that a participant or an individual who doesn’t want to participate in a live hearing, or submit to cross examination may not have their testimony or evidence considered at the outcome of the proceeding. So while the new regulations may have changes that starts to make the process look more like a court proceeding, individuals on college campuses need to ensure that their grievance policies are in compliance with the new regs and that participants are advised about what participation will look like for them.

Q: What has changed with regard to the types of roles institution representatives have in this process?

Adrienne Martinez: The new regulations also are very specific about the types of roles that campus administrators can have in this process. So under previous guidance we may have seen administrators that wore multiple hats in these kinds of proceedings, now we’re seeing that the new regs will require an actual hearing officer who’s designated, who was not also serving as the institution’s Title IX coordinator, and who also does not serve as an investigator in the process. So the emphasis here is in order to ensure due process and to ensure a fair hearing, you must have a hearing officer who does not have a conflict or serving in any other role in the process. This is going to require institutions to consider how they plan to pass out these roles among their staff or their faculty who participate in the process, as well as the types of training that will be required in order to ensure that the hearing officer is competent to serve in that role, that you have an investigator competent in that role and a Title IX coordinator who serves in that role as well.

Q: Have there been any legal challenges or efforts to delay or modify the implementation of these regs?

Paige Good: There are roughly 18 state attorneys general who have filed lawsuits in an attempt to stop the final regulations from taking effect in mid-August. One of the reasons behind their lawsuit is this concept of basically you’ve done a complete overhaul to the way that we’ve been handling these sexual harassment complaints and our grievance procedures, and we had notice of this final regulation in May of 2020. And we only had a couple of months, till August to enforce it. Oh and by the way, there’s this huge COVID-19 pandemic that we’re dealing with as well. So far, nothing has happened there. There have been no dispositive rulings, and as far as we know August 14 is still that deadline for colleges and universities to comply. But we are keeping a close eye on that litigation to see if institutions are gonna get any relief from that enforcement date.

Q: What should covered institutions be doing now?

Adrienne Martinez: Barring any action from courts, the final regulations are in effect August 14th of 2020. As a former Title IX compliance officer myself, I sympathize with institutions that are scrambling to get their policies and procedures in place by this date, as well as considering who is qualified to serve in these roles, and to fulfill the new requirements in the new regulations. We are currently serving clients in helping them with reviewing their policies and procedures for compliance with Title IX, as well as other overlapping areas of law including Title VII, the Violence Against Women’s Act Reauthorization and the Jeanne Clery Act. We’re also advising clients on considering who needs to serve in these roles in order to ensure that the hearing process is fair and equitable.

We’re also advising clients about how to ensure that their training complies with ensuring that, individuals that serve in the hearing process as adjudicators, that individuals who serve as investigators, and their Title IX compliance officers are fully prepared to serve in these roles and ensure the process is equitable and fair for everyone.

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This Attorney Q&A has been provided for information of clients and friends of McAfee & Taft A Professional Corporation. It does not provide legal advice, and it is not intended to create a lawyer-client relationship. Readers should not act upon the information in this Q&A without seeking professional counsel.