On November 16, 2018, the Department of Education officially released proposed regulations substantially changing the landscape of Title IX. The Trump administration is decreasing the breadth of conduct that schools must investigate, increasing the transparency of the investigation process, increasing the rights of the accused and decreasing confidentiality protections for complainants. In sum, these new regulations will require significant revisions to board policies and procedures.

The proposed regulations not only change the definition of sexual harassment but also change the instances when school personnel must investigate sexual harassment. Sexual harassment under the new regulations is defined as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or sexual assault as defined in 34 CFR 668.46(a).” Compare this to the definition of sexual harassment under the Obama administration, which was unwelcome conduct of a sexual nature. The change in definition narrows the scope of conduct that violates Title IX. In addition, a school is only required to investigate incidents that it has “actual knowledge” of and when it does have such knowledge, must respond in a manner that is not “deliberately indifferent.” Previously, schools were required to investigate incidents that it reasonably should have known about and could be found in violation of Title IX if they failed to investigate all such incidents.

The investigative process under the proposed regulations is also drastically different. First, the investigation process provides more rights to the accused while at the same time taking away confidentiality rights for complainants. The new regulations give accused individuals notice of any allegations against them, which includes the identity of the complainant. Respondents are also entitled to opportunities to respond to allegations before being interviewed and are allowed to review all evidence and have the right to respond in writing before the investigation process is complete. In addition, either party may discuss the allegations freely and gather and obtain evidence during the course of the investigation. Essentially, the parties are being given the ability to fact find and present evidence rather than the previous model which put the onus of fact finding on the school.

One of the biggest changes to Title IX is the standard required to determine misconduct. Previously, the “preponderance of the evidence” standard was used which basically meant that it was more likely than not that misconduct occurred (i.e., 50.1% likely). The new regulations allow schools to use the preponderance of the evidence standard only if the same standard is used in all other misconduct cases that are not sexual in nature. Otherwise, the “clear and convincing” standard must be used, which requires that the evidence show that it is highly probable or probably certain that the misconduct occurred. An even bigger change for institutions of higher education is the hearing process, which under the new rules, requires a live hearing and requires the opportunity for each party to ask questions of the other party and any and all witnesses.

It is clear that the proposed Title IX regulations will change investigation and compliance procedures for K-12 school districts and institutions of higher education. We will continue to monitor the proposed regulations and provide updates.

For questions with regard to these proposed regulations, please contact Mohammed Lakhani.