New U.S. Department of Education Final Title IX Rule Released

Photo by Mihai Surdu on Unsplash

Earlier today, the U.S. Department of Education released its much-anticipated Final Rule under Title IX.  The document is 2033 pages long, so I haven't gotten anywhere near through it, but they have released several summaries: here, here, and here.

Important points on my first read through:
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Hearings

• Live hearings must occur in all Title IX cases in higher ed institutions
• Live hearings are optional in K-12
• Schools must provide representatives for both parties so they don't have to directly cross-examine each other (representatives don't have to be attorneys but they can be)
• Hearing officer must review questions to be asked of each party by the other to ensure they are relevant
• Hearings can occur via video conference or other technology
• The school must create a transcript or recording of the hearing (this is big - many are intentionally not doing this right now)
• Decisionmaker at the hearing cannot be the investigator or the Title IX Coordinator

Three categories of violations

• Quid pro quo
• Clery Act or VAWA violations (sexual assault, stalking, & relationship violence)
• Sexual harassment in other forms that is severe, pervasive, AND objectively offensive (this is a higher standard than is required under Title VII)

Responsible employees

• Anyone at a K-12 institution
• Only the Title IX Coordinator or other designated staff at higher ed institutions

Investigative reports/communication with parties: parties get at least ten days to review and respond to investigative reports (many schools are currently only allowing a five day or less review period)

Appeals: both parties must have an opportunity to appeal (also big as this was not previously required - it was just if there was an appeal allowed, both parties had to have the opportunity to appeal)

Informal resolution: not allowed in cases where an employee engaged in sexual harassment against a student

Confidentiality: parties' written consent is required before their medical or psychological records can be released or used at a hearing

Standard of proof: either "preponderance of the evidence" or "clear and convincing evidence" can be used at the school's discretion

That's a brief overview of some of the major changes I see in my initial review.  Stay tuned as there will likely be a lot more discussion and news on this topic as people have a chance to review the full document.

***This blog contains information only - no legal advice is being provided and you are not a client of the firm unless we have signed a representation agreement with you***

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