Title IX Final Rule

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.

The school is responsible for gathering evidence and has the burden of proof.  The parties must be given equal opportunity to present evidence and witnesses.  The parties may not be prohibited from discussing the allegations or gathering evidence.  If a party is expected to participate in an interview, meeting, or hearing, the school must provide written notice with enough time to allow the party to prepare. The parties must be given equal opportunity to review evidence, and schools must send the parties copies of evidence to both parties and give them time to respond before completing the investigative report.  Schools must also send a copy of the investigative report summarizing the evidence, giving the parties and their advisors at least 10 days to respond before a determination is made.

Postsecondary institutions must allow live hearings where each party’s advisor may question any witnesses and cross-examine the other party.  If a party does not have an advisor at the hearing, the school must provide one.  The decision-maker must determine if each question is relevant before the party or witness answers.  Questions and evidence about the complainant’s sexual history are generally not allowed except to show someone other than the respondent committed the misconduct.  Questions or evidence regarding the complainant’s prior sexual behavior with the responded may be allowed to show consent.  The decision-maker may not draw an inference regarding responsibility based solely on a party or witness’s absence or refusal to answer questions.  If someone refuses to be cross-examined, however, the decision-maker cannot rely on that person’s statement in determining responsibility.  The school must conduct the hearing using technology allowing the parties to be in separate rooms, upon the request of either party.  Schools must create a recording or transcript of the hearing.

K-12 schools are not required to hold a live hearing.  The parties must be allowed to submit written questions for the other party.  The decision-maker must provide each party with the answer and allow limited follow-up questions.  The same limitations regarding the complainant’s sexual history apply to K-12 and post-secondary schools.

The school’s grievance process must state whether the school uses a preponderance of the evidence or a clear and convincing evidence standard for formal complaints of sexual harassment.  This designated standard applies to sexual harassment committed by both students and employees.  The determination regarding responsibility must be made using the designated standard.  The school must send the written determination to the parties simultaneously, and give each party an equal opportunity to appeal. The regulations set forth specific requirements for what must be included in the determination. The determination must include information on appeal rights and procedures.  The regulations include specific appeal procedure requirements.

Schools have the discretion to offer informal resolution processes, but they may not require it.  Schools also cannot require a student or employee to waive the right to a formal investigation and adjudication.  Schools may not use an informal resolution process to address allegations of sexual harassment by an employee against a student.

The effective date for the regulations is August 14, 2020, meaning schools will need to ensure they meet the new Title IX procedures for the fall 2020 semester.  Many schools were awaiting the final rule before making any changes.  The new requirements represent significant changes in process for many organizations, so students should be aware of their rights and contact a Washington Title IX defense attorney if they believe a complaint may be filed against them.  Blair & Kim, PLLC, can help you protect your rights and your education. Call (206) 622-6562 to discuss your case.

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