15/05/2020
In a time of self-reflection and metamorphosis for many educational institutions across the country, the final draft Title IX Regulations released by Betsy DeVos and the Department of Education last week add to the unprecedented ambiguity colleges and universities are currently facing. The COVID-19 pandemic has forced institutions of higher learning, like any other business across the world, to rapidly adapt to new methods of operating as the news brings about seemingly daily changes to everyday life. Among these changes includes evolving from community-based residential campuses to remote education, with students learning on virtual platforms and educators broadcasting lessons via webcam. It continues to remain unclear what higher education will look like in the months to come. As the academic calendar for many institutions winds to a close this month, the Department of Education released its 2,033 page draft Title IX regulations last week, compounding the lack of clarity schools are already facing in an uncertain era.
One of the changes worthy of highlighting in the new regulations includes a definition of sexual harassment that places a higher bar for what qualifies as sexual harassment. Under DeVos’s new regulations, sexual harassment means “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.” The regulations mark a divergence from the definition of sexual harassment set forth in the October 26, 2010 “Dear Colleague” letter issued by the Department of Education, defining sexual harassment as “unwelcome conduct of a sexual nature, which can include unwelcome sexual advances, requests for sexual favors, or other verbal, nonverbal, or physical contact of a sexual nature.” The transition to a more objective standard and the more stringent requirements that conduct be “severe” and “pervasive” pose a higher bar for complainants.
The new regulations offer a somewhat grey area for what allegations an institution must or may respond to or investigate. The new Title IX statute applies with respect to “education programs or activities” and includes locations, events, or circumstances over which the institution “exercised substantial control over both the respondent and the context in which the harassment occurs.” The “substantial control” language curtails the broader language of the prior regulations which reached “all of the operations of” institutions, and in doing so, fuels ambiguity. Meant to include buildings owned or controlled by officially recognized student organizations, this definition leaves unquantifiable uncertainty for organizations that are not officially recognized or buildings that are not “owned or controlled” by such an organization. Thus while the regulations are clearly intended to apply to off-campus activities such as study abroad programs, the extent to which they do is still unclear.
The grievance process under the new regulations is modified in several key ways as well. For one, institutions may now elect the standard of proof used in sexual harassment hearings. Schools may apply a “preponderance of the evidence” standard or a “clear and convincing evidence” standard, as long as the standard is applied for all formal complaints of conduct code violations—meaning the same standard applies whether the respondent is a student or an employee (including a faculty member). Lastly, and perhaps the most chilling element to potential future grievance proceedings, is that sexual harassment proceedings must include a “live hearing with cross-examination” component. While cross examination of the accuser may take place with the parties located in separate rooms with technology enabling the parties to see each other, the accusing party must be subject to questioning by a representative of the accused (and not the accused party directly) in such proceedings. If a party does not submit to the cross examination, the decision maker(s) must not rely on any statement made by that party in determining the accused’s guilt. Many victims’ advocates have openly denounced this requirement for the effect it may have on complainants’ health and well-being and its potential to discourage victims from making complaints.
The timing of the release of the new guidelines unquestionably presents a challenge for educational institutions. With an effective date of August 14, 2020, administrators face an unusually quick turnaround in compliance during an already uncommon time. Schools are already facing economic challenges in the midst of a massive overhaul and transition to online and virtual learning platforms. Concurrently, the regulations now place an increased burden on administration to prepare new methods of enforcement and compliance in advance of the August deadline. Whether the new regulations stand in the face of certain challenge is yet to be seen, but in the interim schools and administrators must plan as though the regulations will take effect in August.
