Prior to August of 2020 Title IX and sexual harassment on campuses was covered by guidance documents, but there were no legally binding policies regarding how to handle sexual harassment on campus. Now, that has all changed due to the new regulations called, The Final Rule.
How were situations handled prior to the Title IX Changes?
Prior to The Final Rule, each school, college, or university was free to create their own policies. After August 2020 there are clear regulations which delineate the legal obligations of schools, colleges, and universities and the response to reports of sexual harassment on campus. These new regulations, referred to as The Final Rule, attempt to ensure that the rights of both the complainant and the respondent are equally protected; those complainants receive appropriate support, and respondents are only treated as responsible after receiving due process, and school officials serve without bias for or against either party.
What is Title IX – The Final Rule
The intention of the Final Rule is to reflect our national commitment to equal treatment regardless of gender, free speech, academic freedom, due process of law, and fundamental fairness. By establishing strong, clear procedural rights and a predictable, transparent grievance process the Final Rule helps complainants, respondents and their chosen advocates to have realistic expectations and universally defined procedures to follow.
The Final Rule: New Regulations on Campus Sexual Harrassment
The US Department of Education Title IX Final Rule lays out what conduct constitutes sexual harassment and how the school is required to respond when:
- The school has actual knowledge of sexual harassment. The Final Rule also explains what constitutes “actual knowledge” to include notice to any elementary or secondary school employee, and states that any person may report to a Title IX Coordinator in person or by email, phone or mail.
- The sexual harassment occurred within the school’s education program or activity, which is specified as a school’s education program or activity includes situations over which the school exercised substantial control or buildings owned by the school, and buildings owned or controlled by student organizations officially recognized by a postsecondary institution, such as a fraternity or sorority.
- The sexual harassment occurred against a person in the United States.
Once the school, college, or university receives a formal complaint of sexual harassment they must investigate every complaint. If the alleged conduct is found to not fall under Title IX, then the school may further address the complaint under the school’s student/employee codes of conduct.
Once a grievance has been filed with a school the school must follow the following process:
- Give both parties written notice of the allegations, equal opportunity to select an advisor of their choice including attorneys and equal opportunity to submit and review evidence during the investigation.
- Use personnel who have been trained to be objective to review evidence without prejudgment, free from conflicts of interest or bias for or against either party.
- Protect the parties’ privacy by requiring written consent before using medical, psychological, or other treatment records during the investigation.
- In order to use any type of “informal resolution” process voluntary written consent must be obtained from all parties.
- The standard for evidence is to be either preponderance of evidence or the clear and convincing evidence standard, and parties must be informed in writing which standard will be used. This is usually published in the student code of conduct or the employee handbook.
- There must be a presumption that the respondent is not responsible until the grievance process is completed. This is essentially the “presumed innocent until proven guilty” that most people are familiar with from television and movies.
- The school must ensure that the person responsible for the investigation is not the same person that will be making the decision.
- Colleges and universities must hold a live hearing and allow cross-examination by party advisors however, the parties are not permitted to cross-examine each other. K-12 schools do not need to hold a hearing but must allow parties to submit written questions for the other parties and/or witnesses to answer.
- Complainants cannot be asked about prior sexual history in line with the “rape shield” protections.
- Both parties, and their advisors, must be sent the written determination once a determination has been made. The determination must include an explanation about how and why the person making the determination reached their conclusions.
- Both parties must have an equal opportunity to appeal.
- All parties, including witnesses, complainants, and respondents must be protected from any sort of retaliatory consequences for reporting, participating, or refusing to participate in the investigation and hearing process.
- All materials used to train the school personnel must be made publicly available on the school’s website, or to make these materials available upon request if the school does not maintain a website.
- Document and keep all reports and investigation records.
What is meant by the use of Title IX and Sexual Harrassment?
Under the Final Rule the definition of sexual harassment was narrowed to “any unwelcome conduct that a reasonable person would find so sever, pervasive, and objectively offensive that it denies a person equal educational access.”; however, sexual assault, dating violence, domestic violence, and stalking do not need to meet the “severe, pervasive, and objectively offensive” to be reported.
The changes brought by the Final Rule help “level the playing field” and allow the respondent and the complainant to be on equal footing in terms of rights and responsibilities. By preventing colleges from using a single investigator model and moving to a system where three officials work through separate pieces of a single Title IX complaint process, complainants and respondents are both assured that the decision of responsibility is being made as objectively as possible. As Title IX complaints continue their decade long upward trend having the protections established by the Final Rule will help both complainants and respondents have realistic expectations of fairness, and a clear roadmap of what to expect as the process moves forward.
