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Federal Regulations Regarding Sexual Misconduct

Final Title IX Regulations Take Effect

On August 14, 2020, new federal regulations under Title IX of the Education Amendments of 1972 went into effect, which further establish how education programs or activities that receive Federal financial assistance, including colleges and independent schools, shall respond to complaints on sexual misconduct.

Colleges

The new regulations indicate that colleges are required to address sexual misconduct that occurs on campus and in college programs, but do not require colleges to address sexual misconduct that occurs outside an education program or activity.  On the one hand, the regulations interpret “program or activity” broadly to include buildings controlled by recognized student groups.  On the other hand, advocates for survivors of sexual assault have criticized the new regulations for not requiring colleges to respond to sexual harassment that occurs off-campus.  The regulations further provide that colleges only have to respond to complaints if they have actual knowledge of sexual harassment (which occurs when an official with authority to take corrective action receives notice), and cannot respond in a manner that is “deliberately indifferent.”  Furthermore, the regulations maintain a general 60-day limit for officials to fully investigate and close sexual misconduct complaints.

A college is required to respond to complaints of sexual harassment, which include (1) quid pro quo sexual harassment, (2) sexual assault, dating violence, domestic violence and stalking, and (3) any other unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it denies a person access to the recipient’s education program or activity.

The regulations indicate that a college’s grievance procedure must:

  • Treat complainants equitably by providing remedies any time a respondent is found responsible, and treat respondents equitably by not imposing disciplinary sanctions without following the grievance process prescribed in the Final Rule.
  • Design any such remedies, which are required to be provided to a complainant when a respondent is found responsible, to maintain the complainant’s equal access to education and may include the same individualized services described in the Final Rule as supportive measures; however, remedies need not be non-disciplinary or non-punitive and need not avoid burdening the respondent.
  • Require objective evaluation of all relevant evidence, inculpatory and exculpatory, and avoid credibility determinations based on a person’s status as a complainant, respondent, or witness.
  • Require Title IX personnel (Title IX Coordinators, investigators, decision-makers, people who facilitate any informal resolution process) to be free from conflicts of interest or bias for or against complainants or respondents.
  • Provide for training of Title IX personnel, which includes training on the definition of sexual harassment in the Final Rule, the scope of the school’s education program or activity, how to conduct an investigation and grievance process including hearings, appeals, and informal resolution processes, as applicable, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias.
  • Ensure that decision-makers receive training on any technology to be used at a live hearing.
  • Provide for training of the college’s decision-makers and investigators on issues of relevance, including how to apply the rape shield protections provided only for complainants.
  • Include a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.
  • Indicate that colleges must post materials used to train Title IX personnel on their websites, if any, or make materials available for members of the public to inspect.
  • Include reasonably prompt time frames for conclusion of the grievance process, including appeals and informal resolutions, with allowance for short-term, good cause delays or extensions of the time frames.
  • Describe the range, or list, the possible remedies a school may provide a complainant and disciplinary sanctions a college might impose on a respondent, following determinations of responsibility.
  • State whether the college has chosen to use the preponderance of the evidence standard, or the clear and convincing evidence standard, for all formal complaints of sexual harassment (including where employees and faculty are respondents).
  • Describe the college’s appeal procedures, and the range of supportive measures available to complainants and respondents.

The regulations further provide that a college’s grievance process must not use, rely on, or seek disclosure of information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.

Another important requirement contained in the regulations is that, during investigations, colleges must provide for a live hearing wherein advisors for both parties can introduce evidence and cross-examine the other party and witnesses.  In evaluating the evidence, colleges are not permitted to rely on statements that are not subject to cross-examination.  There are certain limitations on cross-examination, such as prohibiting questions about a complainant’s sexual behavior or disposition unless offered to establish consent or another party’s responsibility for the violation.  Moreover, separate rooms are allowed for cross-examination of the parties and a party is not permitted to personally cross-examine the other. 

Additionally, the regulations contain other controversial features – for example, the regulations allow the college to use either a higher “clear and convincing evidence” standard or a lower “preponderance of the evidence” standard to determine whether alleged sexual misconduct occurred.  Note that a college must use the same standard of evidence for complaints against students and employees, including faculty. 

Other relevant features in the regulations include the requirement that colleges offer an opportunity to appeal the finding of whether sexual misconduct occurred based on procedural irregularities, new evidence, or bias or conflict of interest of the coordinator, investigator, or decision-maker.  With the consent of both parties, colleges can also offer informal resolution instead of investigation and adjudication.  In addition, institutions must respond to a harassment report by providing supportive services to victims, regardless of whether a formal complaint triggering an investigation is filed.

In order to further expand upon the federal regulations, many colleges are implementing policies of their own which supplement the limited requirements of the federal regulations and provide for a more in-depth approach to handling complaints of sexual misconduct.  While the regulations allow colleges to implement their own supplemental policies, any provisions, rules, or practices other than those required by the regulations that a school adopts as part of its grievance process for handling formal complaints of sexual harassment, must apply equally to both parties.  Any colleges that choose to create their own supplemental policies will need to review such policies to ensure that they are in compliance with state law and legal precedent in their jurisdiction. 

K-12 Schools

The federal regulations provide certain key differences for K-12 schools.  First, the regulations require a K-12 school to respond whenever any employee has notice of sexual harassment, including allegations of sexual harassment.  Additionally, many States, including Connecticut, require all K-12 employees to be mandatory reporters of child abuse, including sexual harassment. 

The majority of the grievance process specified by the regulations applies to all schools, and is therefore largely the same as above.  However, unlike the requirement that a college must provide a live hearing with cross-examination in its grievance process, a K-12 school may, but need not, provide for a hearing in its grievance process.  Moreover, regardless of whether the school elects to provide a hearing, the regulations require that after the school has sent the investigative report to the parties and before reaching a determination regarding responsibility, the decision-maker(s) must afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party. 

The Final Rule also recognizes that parents and guardians of students involved in such complaints have the legal right to act on behalf of their child, whether he/she is a complainant, respondent, or other party to the grievance procedure.  This means that parents and guardians have the legal right to act on behalf of their children with respect to the exercise of their Title IX rights, including but not limited to the filing of a formal complaint.  The legal right of a party or guardian to act on a party’s behalf extends throughout the entire grievance process.

For further information on the implications of the Final Title IX regulations, please contact Christopher L. Brigham, at (203) 786-8310 or cbrigham@uks.com, Andrew L. Houlding at (203) 786-8315 or ahoulding@uks.com, Valerie M. Ferdon at (860) 548-2607 or vferdon@uks.com, or Jeffrey E. Renaud at (860) 548-2629 or jrenaud@uks.com.

Disclaimer: The information continued in this material is not intended to be considered legal advice and should not be acted upon as such. Because of the generality of this material, the information provided may not be applicable in all situations and should not be acted upon without legal advice based on the specific factual circumstances.