Amid the COVID Chaos, New Title IX Harassment Rules Take Effect

Are your campuses in compliance?

As if college administrators weren’t facing enough challenges this fall, the U.S. Department of Education’s new Title IX regulations over sexual harassment took effect on August 14, 2020. The proposed rules were originally published in November 2018, with Secretary of Education Betsy DeVos saying that they would provide due process rights for students accused of sexual misconduct, while providing consistency for accusers. After a lengthy comment period and rulemaking process, the final rules were released in May 2020 and are now in effect.

The changes for higher education are substantial. They begin with a new definition of sexual harassment, clarify when colleges and universities have the responsibility to respond to complaints, and outline a court-like process for hearing and deciding harassment claims. Many institutions, in order to comply, will have to go beyond updating policies to significantly change their entire processes from beginning to end.

The Beginning: What Constitutes Sexual Harassment, and When Must Schools Respond?

One fundamental change is a more quasi-judicial approach to handling harassment claims. The new definition of sexual harassment under Title IX comes from the Supreme Court: unwelcome conduct on the basis of sex that is so “severe, pervasive, and objectively offensive” that it denies a person access to the education program or activity. The new definition also includes quid pro quo sexual harassment by employees (e.g., faculty) and sexual assault, dating violence, domestic violence and stalking, as defined by the Clery Act.

Colleges and universities are required to respond in a way that is not “deliberately indifferent,” and only if they have actual knowledge of the alleged harassment and the behavior occurred on campus or within a school-related program or activity — which would include off-campus fraternity and sorority houses. They are required to dismiss any complaints that don’t meet the definition, didn’t occur within their programs, or didn’t affect a person inside the United States.

Timelines are now flexible. There is no specific deadline for responding, except that schools must be “reasonably prompt.” During investigations, investigators are required to furnish evidence to all parties and give people at least 10 days to respond.

The Investigation: Live Hearings, Cross-Examination, and Separate Officials

Instead of allowing a single person to receive, investigate and decide on disciplinary sanctions, colleges and universities must now assign separate officials to manage individual aspects of Title IX harassment complaints. First, there must be a Title IX coordinator to receive complaints; second, an investigator to research the facts and interview both the complainant and the accused; and lastly, a decision maker(s) to make the final determination and assign penalties or remedies.

Colleges and universities must also now decide on an evidence standard to use in investigations. Whether to use a “preponderance of the evidence” standard, as previous guidance held, or to set a stricter “clear and convincing” evidence threshold must be determined and, whichever definition is used, the same standard must apply to all complaints, whether they involve students or faculty. A well-defined appeals process is also now a requirement for investigation proceedings.

One of the most important, and most publicized, requirements of the new regulations is that post-secondary institutions are required to conduct a live hearing and allow the cross-examination of all parties. If students don’t have an advisor (legal counsel or representative), the school must provide one. Administrators must remember that, if a student or witness does not agree to be cross-examined, the institution may not rely on his/her statements in making a decision.

Policies, Processes and Preparation

The new Title IX regulations are complex and very different from previous guidance. New harassment definitions, live hearings and the end of the single-investigator model are only a few of the changes that postsecondary schools will have to digest and accommodate. They must develop new policies, train staff to follow them without prejudgment, post the training materials on their websites, and ensure that the new changes are also communicated to students.

Only 90 days were allowed between publication of the rule and its new effective date, and those days are now gone. If your institution hasn’t yet created new policies, assigned different officials to manage the three key phases of response, trained staff and published those training materials, then it may be time to seek help in getting into compliance.

If you have questions about how to meet the new Title IX requirements, or would like assistance, Weaver can help. Our risk advisory and compliance professionals can help you develop processes that fit your organization, people and culture. To find out more, visit weaver.com or contact us for a free consultation. 

Authored by Dan Graves, CPA, and Michael Karnes, CPA.

©2020