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New Title IX Guidance on Sexual Assault and Harassment

In 2011, the Department of Education, under then-President Barack Obama, issued guidelines that addressed how schools should investigate and prosecute claims of sexual assault.  In September 2017, the U.S. Department of Education, under President Trump, rescinded those guidelines.  In November 2018, the U.S. Secretary of Education, Betsy DeVos, released a rewrite of federal Title IX guidance, which alters the landscape in how schools should respond to, investigate, and handle claims of sexual assault and harassment.

Importantly, the new Title IX guidance changes the definition of sexual harassment to sexual assault or “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.”  The Obama-era guidelines defined it as simply “unwelcome conduct of a sexual nature.”

Along those lines, the new Title IX guidance provides that schools need only address a complaint if they have “actual knowledge” that an offense occurred, as opposed to the old Obama-era guidelines that required schools to respond if they “reasonably” should have known about a violation.  Also, the new guidance explains that a school need only respond to “conduct within its education program or activity” or on its campus.  And a school will be faulted for not addressing a complaint only if it was “deliberately indifferent” to known sexual harassment.

Similarly, the new Title IX guidance allows schools to shift the burden or standard that officials must use in deciding whether an act of assault or harassment occurred.  Specifically, the guidelines change the threshold from a “preponderance of the evidence” standard to a higher standard of “clear and convincing evidence.”

Additionally, under the Obama-era guidelines, schools were required to have the same process of appeals for both victims and the accused.  Specifically, victims were allowed to appeal findings of not guilty.  The new guidance, however, gives schools the discretion to determine the appellate process to be used.  Accordingly, schools can decide whether only findings of guilty are allowed to appealed.

What is more, the old guidelines strongly discouraged the cross-examination of victims, as the experience of cross examination could be “traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.”  But the new guidance provides that the accused is guaranteed the right to cross-examine the accuser.  The cross-examination needs to occur in a live hearing by a lawyer or other advisor, but the parties may be in separate rooms while using technology.

Finally, under the old Obama-era guidelines, mediation and other alternative dispute resolution procedures were inappropriate in cases involving alleged sexual assault.  The concern was that victims may have felt pressured to engage in such alternative forums, and the process of an alternative forum could be traumatizing for the victim.  Conversely, the new Title IX guidance provides that mediation and other alternative dispute resolution procedures are expected to be allowed in complaints centered on sexual assault.

In the coming months, the Department of Education is expected to develop official rules and regulations that carry the force of law concerning the changes announced in the Title IX guidance.  The rules and regulations are expected to outline the processes that schools will need to follow under Title IX.  The Department of Education has noted that there will be periods for public comment during the rule-making period.

HLERK will continue to monitor the developments pertaining to Title IX in the coming months.