05-13-2020
Last week, the U.S. Department of Education (DOE) released its Final Rule under Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in education programs or activities receiving federal financial assistance. For the first time, the Department's Title IX regulations define sexual harassment, including sexual assault, as unlawful sex discrimination. The new regulation holds schools accountable for failure to respond equitably and promptly to sexual misconduct incidents and are intended to ensure a fair, reliable process of adjudication.
Schools will only be responsible for sexual harassment or assault that occurs at school-affiliated events, but did extend responsibility beyond campus, saying that schools would be required to investigate accusations of misconduct that occur in “a building owned or controlled by a student organization that is officially recognized by a postsecondary institution,” such as a fraternity or sorority.
Schools will be required to have live hearings during which the accuser and the accused may be cross-examined and challenged on the validity of their claims. The new regulations adopt the Supreme Court’s definition of sexual harassment as “unwelcome conduct that is so severe, pervasive and objectively offensive” and included that conduct could be harassment if “a reasonable person” would say it was. The rules also limit the complaints that schools are obligated to investigate to only those filed through a formal process and brought to the attention of officials with the authority to take corrective action, not other authority figures like residential advisers. The rules require that accused students be given written assurance that they are presumed innocent. Schools will not be able to impose disciplinary actions on students accused of misconduct until the case has concluded, though schools retain the ability to remove students from campus if they are found to pose a risk. Cases involving students can be resolved through mediation unless the case involves both staff and students.