[dropcap]O[/dropcap]n November 16, the Department of Education released its long-awaited proposal for new Title IX regulations that will govern how colleges and universities respond to reports of sexual harassment and sexual assault. As widely anticipated, the proposed regulations effectively reverse many elements of the Obama administration’s Title IX guidance and impose new mandates that will require an overhaul of the way many colleges and universities respond to sexual misconduct. Most significantly, the proposed regulations require colleges and universities to hold live hearings, with cross-examination, to resolve formal complaints. Effectively, this sounds the death knell for the “single investigator” model of resolving sexual misconduct complaints favored by many private, and some public, institutions. The proposed regulations, which the Department published on its website
, will be open to public comment
for a period of 60 days before being finalized.
The Department’s issuance of the proposed regulations is the penultimate step in its nearly two-year effort to rescind and eventually replace the landmark 2011 Dear Colleague Letter (DCL) that most current Title IX policies are modeled after. In an attempt to spur institutional action to address sexual misconduct on campuses, the 2011 DCL mandated the use of a preponderance of the evidence standard for determining whether reported misconduct occurred and urged schools to prohibit cross-examination and other practices that could deter victims from reporting sexual misconduct. Critics of the 2011 DCL, including Secretary of Education Betsy DeVos, argued that the 2011 guidance went too far, resulting in policies that lacked due process, were biased against respondents, and produced unreliable outcomes.
The proposed regulations address the current administration’s concerns over due process in a number of ways. These include mandating detailed written notice to respondents of the charges against them, giving the parties a right to inspect and review evidence collected during an investigation before a decision is made, prohibiting an investigator from also being an adjudicator (ending the so-called “single investigator” model), and requiring, for all colleges and universities, the use of a live hearing to resolve formal complaints. The proposed regulations require schools to permit cross-examination at the hearings and prohibit decision-makers from considering the testimony of any party or witness who refuses to submit to cross-examination.
Victims’ advocates are likely to view the cross-examination requirements as increasing the risk that victims will be re-victimized and, potentially, deterred from reporting sexual misconduct in the first place. On the other hand, due process advocates are likely concerned that existing Title IX processes denied respondents the right to confront their accusers, and are likely to applaud the cross-examination mandate as a decisive victory for fairness. College and university administrators responsible for overseeing Title IX processes are right to be concerned about the increased training, staff time, and outside consulting costs that will be necessary to conduct hearings that look more like civil trials.
While the regulations’ cross-examination requirements are likely to draw the most attention from advocates and the media, the most profound and lasting aspect of the regulations may be their change to the standard the Department of Education’s Office for Civil Rights will use to assess Title IX compliance.
Under current practice, the Department holds institutions responsible for responding to sexual harassment the institution knows about or should know about and reviews the institution’s actions to determine whether they were reasonable in light of Title IX. Under the new standard proposed by the regulations, the Department will only hold institutions accountable for responding to sexual harassment that is reported to the institution’s Title IX coordinator or other high-ranking administrators with actual authority to take corrective action. Further, under the new standard, OCR will find a school to be in violation of Title IX only if the school’s response to known sexual harassment was deliberately indifferent—that is, clearly
unreasonable. This more lenient standard will give institutions more discretion in how they respond to sexual harassment and is likely to significantly diminish the number of violations found by OCR.
Over the next two months, the Department will receive a flood of comments from interest groups, private and public colleges and universities, and individuals. While the Department is legally obligated to assess the comments and may make some modest revisions to the draft regulations to address them, the regulations are likely to survive the comment period without dramatic revisions. Given the interests at stake and the significant ramifications the regulations are likely to have for parties and institutions, a court challenge seems likely in 2019, after the regulations are finalized. The courts will then decide whether the regulations will take effect for the upcoming 2019-2020 academic year.
Derek Teeter is a Kansas City-based partner with the law firm Husch Blackwell LLP. He focuses his practice on litigation and frequently represents higher education institutions with compliance programs and litigation pertaining to the various requirements of federal and state regulations, including the Clery Act and Title IX of the Higher Education Act.