Changes to Title IX Sexual Harassment Investigation Requirements

Washington Title IX defense attorneys know that the procedures used by schools and colleges to investigate allegations of sexual harassment are not always fair.  The Secretary of Education has proposed amendments to the regulations that implement Title IX of the Education Amendments of 1972. Title IX prohibits sex-based discrimination in education programs and activities receiving federal financial assistance.  The proposed regulations would define sexual harassment, specify when a school must respond to a sexual harassment allegation, impose a standard for a school’s response to sexual harassment allegations, set forth when a school must initiate its grievance procedures, and require procedures to ensure a fair and reliable factual determination during the investigation and adjudication of a sexual harassment complaint.

The Secretary found problems with how Title IX has been applied.  These problems included definitions of sexual harassment that were too broad, lack of notice, not providing both parties with the evidence reviewed by the investigator, not allowing cross-examination of the parties and witnesses, and adjudications that applied the lowest standard of evidence.

The proposed regulations are intended to ensure that allegations are properly investigated and procedures are fair to both parties.  Unfortunately, sometimes schools and universities engage in procedures that deny due process to those accused of sexual harassment, regardless of whether the accused person is a student or a faculty member.

In a recent case, a federal trial court found that a university may have violated a professor’s due process rights in sanctioning her for three years, including denying her the opportunity for sabbatical leave or accumulation of sabbatical equity and prohibiting her from acting as primary advisor for doctoral students, without giving her a meaningful opportunity to be heard.

The professor had been accused of sexual harassment.  The Office of Institutional Equity investigated and found her behavior was inappropriate, but had not created a sexually hostile environment.  However, the dean of the college sent her a letter stating there was evidence she had failed to maintain professional boundaries and was facing possible sanctions.  The letter allowed her to submit additional documentation. She was then sanctioned.

She filed a grievance.  The grievance hearing was the first time she learned she was accused of violating the civility policy.  The grievance hearings board upheld the sanctions, and the provost also upheld them on appeal.

The professor ultimately filed a 1983 action against the university, the dean, and the provost.  On a defense motion to dismiss, the court found the university had not afforded the plaintiff a meaningful opportunity to be heard.  The court noted she was originally cleared of the sexual harassment charges, but was “retried” by the Faculty Executive Committee and only allowed to submit written documentation in response.  When she was given a hearing after filing a grievance, she was denied the opportunity to cross examine her accusers.  In fact, the accusers’ identities were not even disclosed.  Furthermore, the plaintiff alleged she was unable to prepare a defense because she did not receive notice of the charges against her until halfway through the hearing.  The court found the due process claim against the dean and the provost could move forward.

At this time, the professor’s case has not been decided and the proposed regulations have not yet taken effect.  It is clear, however, that changes in sexual harassment investigations on school and university campuses are coming.  Although not everyone agrees that the changes proposed by Secretary DeVos are positive, many people on both sides of the issue agree that changes and clarification are necessary.

If you have been accused of sexual harassment or other Title IX violations at a school or university, you need a skilled Title IX defense attorney to protect you and your rights.  Call Blair & Kim, PLLC, at (206) 622-6562 to schedule an appointment.

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