By Kevin A. Crass and Katherine C. Campbell
When and if students across America return to campus this fall, new regulations will apply under Federal law regarding Title IX protections for survivors of sexual misconduct. These regulations seek to restore due process in campus proceedings to ensure all students can pursue an education free from sex discrimination.
This historic action, which was announced by the United States Secretary of Education, Betsy DeVos, seeks to define sexual harassment, including sexual assault, as unlawful sexual discrimination. Schools and institutions subject to the Title IX regulation will be held accountable for failure to respond equitably and promptly to sexual misconduct incidents and must ensure a more reliable adjudication process that is fair to all students.
This new regulation, which goes into effect in August 2020, will require all educational institutions and systems subject to Title IX to revise their current Title IX policies. These revisions should modify the definition of sexual harassment and set out new processes and procedures for responding to complaints of sexual harassment. At the same time, universities and schools must also establish what may be quasi-judicial proceedings to accommodate adjudication of complaints to include the right of representation and cross-examination on behalf of the accused.
Secretary DeVos issued these regulations after previously rescinding the Obama era guidance, issued in a “Dear colleague” letter, which discouraged cross-examination and encouraged schools to decide claims using a “preponderance of the evidence” standard. The new rules allow schools to choose between a preponderance of the evidence standard or a clear and convincing evidence standard. The standard must be stated in the school’s grievance policy and must be consistent with the standards that the school uses to decide client complaints against school employees and faculty members.
In colleges, the grievance process must provide for a live hearing, although parties and witnesses may appear virtually at the school's discretion. Under the old guidance, schools sometimes suspended or expelled alleged offenders based on findings of an investigator, without any formal hearing. Under the new rule, cross-examination is allowed at the hearing although the questions must be asked by advisers to the parties rather than the parties themselves. If a party does not have an advisor, the college must provide one, although the advisor does not have to be a lawyer.
Key Provisions of the Department of Education's New Title IX Regulation:
- 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 the school 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 all students' 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 – 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;
- Schools and universities should review and revise Title IX policies and put new grievance procedures in place.
For more information, please reach out to either Kevin Crass ([email protected] or 501-370-1592) or Katherine Campbell ([email protected] or 479-695-6040).
Kevin A. Crass is a partner in the Litigation Practice Group at Friday, Eldredge & Clark, LLP in Little Rock, Arkansas. He focuses his practice on significant, complex business litigation in federal and state courts including the defense of claims involving class actions, securities fraud, ERISA, business torts, trade secrets, patent and trademark infringement, product liability, environmental and toxic torts and breach of contract, among others. Kevin has served as counsel to both institutions and students in Title IX investigations.
Katherine C. Campbell is an associate in the Litigation Practice Group at Friday, Eldredge & Clark. She serves as litigation counsel for individuals and businesses in complex business and commercial disputes.
Disclaimer: The information included here is provided for general informational purposes only and should not be a substitute for legal advice nor is it intended to be a substitute for legal counsel. For more information or if you have further questions, please contact one of our Attorneys.