After much anticipation, the Department of Education (the Department) has finally released its final rule addressing how schools receiving federal financial assistance must respond to sexual harassment allegations. The Department has expressed an intention to provide a fair process to both complainants and respondents. These regulations put in place requirements that will help ensure the protection of the due process rights of students who are accused of misconduct.
The new regulations define sexual harassment to include sexual assault, dating violence, domestic violence, and stalking. The regulations apply the Davis definition to unwelcome conduct sexual harassment. The conduct must be severe, pervasive, and objectively offensive.
The regulations set forth procedural requirements around the grievance and investigation process. Title IX personnel may not have conflicts of interests or bias against either party generally or personally. They must also be trained on the investigation and grievance process, including how to serve impartially and avoid bias. The respondent is entitled to a presumption he or she is not responsible for the alleged conduct until a determination has been made. Upon receiving a formal complaint, the school must provide all known parties with written notice of its grievance process and the notice of allegations with enough detail to allow them for the initial interview. The notice must inform the parties of their right to have an advisor of their choice. The school must provide notice of any additional allegations it decides to investigate.