After an extensive period of public commentary and deliberation, the U.S. Department of Education (ED) announced significant updates to its Title IX regulations on April 18, 2023. The changes are largely designed to overhaul how institutions of higher education (IHE) consider and address cases of sexual harassment, sexual assault, LGBTQI+ discrimination, and other forms of sex-based mistreatment, with the goal of ensuring gender equity in education.

Read More >> Here We Go: ED Releases Reworked Title IX Regulations

Introduction 

In February 2023, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a resource to the higher education community reiterating some of the core concepts it uses to evaluate whether institutions are providing equal athletic opportunities consistent with Title IX. For colleges and universities, this new resource should serve as a not-so-subtle prompt to review their programs for compliance with applicable standards. 

Read More >> OCR Issues New Guidance on the Application of Title IX in Higher Education Athletics

On Dec. 22, 2020, the U.S. District Court for the Northern District of California partially granted a petition for preliminary injunctive relief barring the enforcement of Executive Order 13950, Combatting Race and Sex Stereotyping, (EO or Order) against federal contractors and grantees. The lawsuit, Santa Cruz Lesbian & Gay Community Center, et al. v. Donald J. Trump, Case no. 5:20-cv-07741 (N.D. Ca. Dec. 22, 2020), seeks to permanently enjoin enforcement of the entire Order as unconstitutional on two grounds:

1. The Order violates the first amendment by unlawfully chilling Plaintiffs’ exercise of constitutionally protected speech based on the content and viewpoint of the speech and 
2. The Order is unconstitutionally vague because it does not provide adequate notice of the conduct it purports to prohibit.

Read More >> Court Issues Nationwide Preliminary Injunction Preventing Enforcement of “Divisive Concepts” Executive Order Against Institutions of Higher Education

On December 12, 2019, the U.S. Court of Appeals for the Sixth Circuit issued a ruling in Kollaritsch v. Michigan State University Board of Trustees, a decision which impacts students’ Title IX claims against their colleges or universities.

When the U.S. Supreme Court examined the issue of institutional liability for student-on-student sexual harassment in 1999, it held that a school may be found liable for student-on-student harassment only if it “acts with deliberate indifference to known acts of harassment in its programs or activities,” and the harassment is “severe, pervasive, and objectively offensive.” Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999). Under Davis, a school “may not be held liable for damages unless its deliberate indifference ‘subjects’ its students to harassment.” Id. at 644. In the years since the Davis decision, a split developed between the Circuit Courts regarding the interpretation of this standard, with some courts finding that a school’s actions must lead to further harassment, and others holding that the school’s actions must only make the students vulnerable to the possibility of further harassment.

In Kollaritsch, four female students alleged that they were sexually assaulted by four male students. Each female student subsequently reported her alleged assault to the University’s administration, which commenced investigations. In their combined lawsuit, the students alleged that the University acted with “deliberate indifference” by failing to engage in adequate investigations of their claims under Title IX, and in so doing, made them “vulnerable” to future harassment.

One of the students claimed that because she saw her alleged attacker on campus multiple times after reporting her assault, the University failed to act quickly enough to remove her alleged attacker from campus and, in doing so, caused her harm. Another student claimed that the University acted with deliberate indifference by reinstating her alleged attacker’s student status after previously expelling him. Finally, another student alleged that the fact that her alleged attacker (who had withdrawn as a student) could return to campus without prior notification to her by the University made her vulnerable to future harassment.

The Court rejected each of the students’ arguments and found that the University’s actions did not cause the students’ continued harassment. Specifically, the Court held that for a school’s response to a Title IX complaint to meet the “deliberate indifference” standard, it must be “clearly unreasonable,” and that unreasonableness must cause further harassment to the student. Overall, the Court held that a student must plead, and ultimately prove: 1) an incident of actionable sexual harassment, 2) the school’s actual knowledge of that incident, 3) some further incident of actionable sexual harassment, and 4) that the further actionable harassment would not have happened but for the objective unreasonableness (deliberate indifference) of the school’s response.

In a move that was foreshadowed by statements from the new administration, by letter dated September 22, 2017, the U.S. Education Department, Office for Civil Rights (“OCR”) announced the withdrawal of the April 4, 2011 Dear Colleague Letter (“DCL”) on sexual misconduct as well as the April 29, 2014 Questions and Answers on Title IX and Sexual Violence. OCR will no longer rely on these documents in the enforcement of Title IX cases.  As reasons for this action, the Education Department cited concerns that the 2011 and 2014 guidance documents led to “deprivation of rights” for students and that the Department had not followed a formal public notice and comment process before issuing the 2011 and 2014 guidance documents.

New September 2017 Question & Answer Document Issued

In place of the April 4, 2011 Dear Colleague Letter (“DCL”) on sexual misconduct as well as the April 29, 2014 Questions and Answers on Title IX and Sexual Violence, the Department issued a new question and answer document – the September 2017 Q&A on Campus Sexual Misconduct  – to guide institutions while the Department conducts an official rulemaking process to promulgate new Title IX regulations. This new Q&A relies in large part on the 2001 Revised Sexual Harassment Guidance and the January 25, 2006 Dear Colleague Letter on Sexual Harassment.

The most notable changes reflected in the newly-issued 2017 Q&A on Campus Sexual Misconduct include:

• The Department has withdrawn its expectation that investigations will be completed within 60 days. Investigations must be “prompt,” but there is no specific expected timeframe for completion. See Question 5.
• The Department has retracted its position that only a “preponderance of evidence” standard may be used in sexual harassment and sexual violence cases. Instead, the standard of proof for finding a violation in sexual misconduct cases should be consistent with the standard the institution uses in other types of student misconduct cases, which may be either a “preponderance of evidence” standard or a “clear and convincing evidence” standard. See Question 8, fn. 19.
• The Department emphasizes the importance of impartiality, saying that “institutional interests” must not interfere with the impartiality of investigations.  Investigators are to be “trained” and “free of actual or reasonably perceived conflicts of interest and biases for or against any party.” See Question 6. If institutions do not already provide an opportunity for parties to raise objections to investigators or other decision-makers, it may be advisable to include such an opportunity.
• In withdrawing the 2014 Q&A, the Department has retracted its previous list of topics on which investigators and adjudicators must be trained. In its place, the Department cautions against “training materials or investigative techniques and approaches that apply sex stereotypes or generalizations.” See Question 6. Similarly, the Department announces that decision-makers must approach cases “objectively and impartially” and may not employ or rely on “sex stereotypes or generalizations.” See Question 8. Institutions should review training provided to investigators and adjudicators to ensure compliance with this aspect of the guidance.
• The Department retracted its prohibition on mediation in sexual violence cases. The Department’s newly announced position is that mediation and other forms of informal resolution may be used to resolve any Title IX complaint if both parties voluntarily agree to participate. See Question 7.
• The Department discourages any restriction on the ability of either party to discuss an investigation, stating that such a restriction is likely inequitable and may impede parties’ ability to gather and present evidence. See Question 6.
• The Department has announced that the investigation should result in a written report summarizing both “the relevant exculpatory and inculpatory evidence”, that the parties should be provided “equal access” to this information, and that they should have the opportunity to respond to the report in writing and/or at a hearing prior to a determination of responsibility.  See Question 6.
• In determining interim measures, a school “may not rely on fixed rules or operating assumptions that favor one party over another.” However, the Department also notes that, in cases of sexual assault, dating violence, domestic violence and stalking, colleges and universities continue to have obligations under the Clery Act to provide reasonably available interim measures to a reporting party who requests such measures. See Question 3.
• The Department has reversed its previous position that, if an opportunity for appeal is afforded to one party, it must be provided to both parties. Now, institutions may restrict the right to appeal to responding parties only. See Question 11.

What this Means for Institutions 

It is doubtful that the Department’s change of position will require institutions to wholly revamp their Title IX policies and procedures. For the most past, the new guidance does not disallow institutions from continuing  current practices if the institution wishes to do so, and in fact some of those practices and procedures continue to be required by the Violence Against Women’s Act amendments to the Clery Act.

One notable exception is the standard of evidence. If an institution uses the higher standard of clear and convincing evidence in other student misconduct cases, the institution will need to consider the need to either change the standard of evidence in those other cases to a preponderance of evidence standard or change the standard applicable to sexual harassment and sexual assault cases.  Also, if institutions do not currently allow parties access to the investigative file, they will need to ensure that this access is incorporated into their procedures going forward.  Relatedly, the requirement that the parties have an opportunity to respond to a written investigative report prior to a determination of responsibility may necessitate refinements to some processes that utilize an “investigator model” for determinations of responsibility, as well as processes that use a formal hearing to consider evidence other than in “report” form.

More generally, the new guidance places a renewed focus on impartiality. All institutions would do well to review their policies, procedures and personnel involved in the process with an eye on this issue. 

State Law Requirements

In addition to the federal requirements impacted by OCR’s new guidance, some states have enacted laws on the topic of response to sexual violence. For instance, New York State’s “Enough is Enough” Law imposes a fairly full panoply of institutional requirements with respect to sexual assault, dating violence, domestic violence and stalking, and New York colleges and universities must continue to comply with this state law despite the U.S. Department of Education’s lessening of its regulatory requirements.  Generally, New York State’s requirements are not in conflict with the Department’s newly-issued positions as articulated in the 2017 Q&A on Campus Sexual Misconduct.  Perhaps the most notable potential exception is with respect to interim measures.  New York State law seems to require a formulaic no-contact order that imposes on the responding party the obligation to “leave the area immediately” if in a public place with the reporting party, whereas the Department’s newly announced position is that interim measures “may not rely on fixed rules or operating assumptions that favor one party over another.” Whether and how these two directives can be reconciled will require further consideration and analysis.

The Department’s announcement makes clear that this is not necessarily the last change it will make with respect to schools and their Title IX obligations.

If you have questions about how the September 22, 2017 DCL or Q&A on Campus Sexual Misconduct impacts your current policies and procedures please reach out to our Higher Education Practice group.

In remarks today, United States Secretary of Education Betsy DeVos announced that the Department of Education plans to initiate a public comment period to begin the process of adopting new regulations on campus sexual violence and harassment prevention and response. The new regulations would supplant existing Department subregulatory guidance (most notably the April 4, 2011 “Dear Colleague Letter” and the 2014 “Questions and Answers on Title IX and Sexual Violence” issued by the Office for Civil Rights).  The timing of the Department’s rescission of the existing guidance is not entirely clear.  Initially it appeared that, contrary to expectations in some quarters, the existing guidance would remain in effect pending completion of the rulemaking process (and that institutions could and should continue to follow it in the interim). However, following Secretary DeVos’s remarks, the Department indicated that it would issue  new “information” about how institutions should comply with their Title IX obligations pending completion of the rulemaking process.

The content and significance of any regulations that might ultimately be issued is, of course, difficult to predict and will depend at least in part on the nature of public comments that the Department receives. However, based upon recent statements by Secretary DeVos and Acting Assistant Secretary for Civil Rights Candice Jackson, institutions can likely expect any new regulations to address, among other things, the rights of students accused under campus disciplinary processes (potentially in a manner akin to some of the respondents’ rights provisions of New York State’s so-called “Enough is Enough” legislation of 2015).

The new regulations will add to the existing patchwork quilt of legal and regulatory requirements to which institutions are subject in this area. Notably, certain federal requirements with respect to campus sexual violence policies and procedures (e.g., the requirement that students be permitted the assistance of an “advisor of choice” in connection with campus disciplinary proceedings) arise not from the Department’s subregulatory guidance, but from the 2014 Violence Against Women Act (VAWA) amendments to the Clery Act.  These requirements would be unaffected by any regulations the Department may adopt.  In addition, institutions in states such as New York, California and Illinois will also need to assess and resolve potential conflicts between the federal regulations and state law sexual violence statutes.

Needless to say, today’s announcement makes the future course of sexual violence prevention and response on college and university campuses an unpredictable proposition. One thing is certain, however: institutions can expect, yet again, the need to review and revise their policies and procedures as they have done so many times before based on a seemingly never-ending succession of legislative and regulatory pronouncements.