On November 19, the U.S. Department of Education (ED) released its long-awaited proposed rules governing sexual harassment under Title IX of the Education Amendments of 1972. Notice of Proposed Rulemaking (NPRM) is scheduled to be published in the Federal Register on November 29, 2018. Once published, the public has 60 days to comment. AACC will file comments in this proceeding.
Previously, implementation of the law in this area has been done through sub-regulatory guidance, which lacks the legal force of regulation. It is important to remember that Title IX most directly concerns institutions, not students; it is institutions that incur liability if they fail to ensure that, regardless of sex, all students are able to participate in a college’s programs and activities. This aside, colleges will continue to develop and apply their own codes of conduct, irrespective of Title IX, that address issues related to sexual harassment, and there will likely be overlap in some areas.
The following briefly analyzes some of the more salient aspects of the regulations for community colleges. Keeping in mind that while the regulations are just proposed, it behooves community college CEOs to consider these looming changes. For the time being, however, it may be most prudent not to change any institutional policies concerning Title IX until the regulation is published in final form.
When an Institution Is Obliged to Take Action
Definition of Sexual Harassment
The definition of sexual harassment, which can trigger the application of Title IX, is narrower than that in effect during the Obama administration. Under the regulations, sexual harassment is defined as either a quid pro quo proposed by a college employee for unwanted sexual conduct in trade for the “provision of an aid, benefit, or service” of the college; sexual assault as defined in the Clery Act; and “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program of activity.” This last category, which incorporates a definition employed in legal cases on this subject, would likely apply to a narrower set of circumstances than terms used in the Obama administration’s guidance. (This guidance has been withdrawn by ED.) Furthermore, the Obama guidance called for looking at the facts of each case both objectively and subjectively through the eyes of the alleged victim.
One of the most substantial changes in the proposed regulations details when an institution is deemed to have notice of possible sexual harassment to which it has an obligation to respond. Under current regulations and guidance, this obligation is triggered when a college knows or should have known about the possible harassment. Under the proposed regulations, the institution only has an obligation to respond under Title IX when it has actual notice of an alleged incident. This only occurs when a report is made to the institution’s Title IX coordinator or another employee who has authority to take corrective action on behalf of the institution. This stands in stark contrast to current practice, where a report to any “responsible employee” triggers an obligation to respond. In practice, many colleges have determined that a wide swath of their employees are “responsible employees,” including adjunct professors. The new regulations may spur colleges to reexamine their policies in this area.
Where and in what circumstances an incident must occur to trigger Title IX obligations is of great interest to community colleges, as the vast majority of their students live off campus and colleges often offer programming and activities in a wide variety of settings. The proposed regulations, like earlier guidance, state that an institution is obligated to respond to conduct that occurs within its “education program or activity.” The proposed regulations cite a number of factors, drawn from legal opinions, which factor into this determination. These include whether the college owns the premises; exercises oversight, supervision, or discipline; or funded, supported, promoted, or endorsed the event or circumstance. The regulations specify that there is no geographical bright line between incidents that trigger a Title IX obligation and those that do not, except for incidents that happen outside of the country, which are explicitly not covered (even if they are within an education program or activity).
Consequently, as is currently the case, off-campus incidents may trigger Title IX obligations if the institution determines they are within its education program or activity. The Obama administration’s 2011 guidance, however, also suggested that schools may have a Title IX obligation to respond to student-on-student sexual harassment that initially occurred off campus and outside of an institution’s education program or activity if there were “continuing effects” from that off-campus incident that created a hostile environment for the student on campus. Critically for community colleges, the proposed regulations do not seem to encompass these situations.
How an Institution Must Respond
Reports and Formal Complaints
Under the proposed regulation, colleges would be held liable under Title IX when the institution knows of sexual harassment allegations and responds to them in a way that is “deliberately indifferent,” meaning “clearly unreasonable in light of the known circumstances.” This is a lower hurdle for institutions than under previous guidance.
As is now the case, an institution is obligated to respond to all reports (under the narrower set of circumstances described above) of activity that meets the definition of sexual harassment and takes place within its education program or activity. The proposed regulations distinguish between reports and “formal complaints,” which are documents signed by the complainant or, in some circumstances, the Title IX coordinator. Only upon the filing of a formal complaint is an institution obligated to launch a formal investigation and use its grievance procedures.
For reports that are not formal complaints, the institution must still respond, and the regulations put forth “supportive measures” that the institution may wish to offer the complainant (and respondent) student. These services, similar in concept to “interim measures” under previous guidance, must be non-disciplinary and at no cost to the students. The measures described in the regulation include counseling, mutual restrictions on contact between the parties, leaves of absence, increased security, and other measures. The preamble to the regulation cites employment of these measures as a means of avoiding a more protracted and potentially charged proceeding.
Due Process Requirements
The proposed regulations delineate due process protections that must be accorded to the parties in sexual harassment disciplinary proceedings that result from a formal complaint. Failure to meet these procedural requirements could itself be a Title IX violation—that an individual was discriminated against in the proceedings. In general, colleges would be required to conduct proceedings that more closely resemble formal judicial proceedings than under current guidance.
Disciplinary proceedings must involve many things that colleges likely are doing already, such as providing sufficient and timely notice of relevant actions to both parties. But for many community colleges, especially smaller institutions, some of the new requirements may go beyond current practice. For instance, the Title IX coordinator, investigator, and decision maker (or makers) for any given case must all be different people. The “single investigator” model, where one person plays more than one of these roles, would no longer be allowed, potentially straining personnel resources at smaller institutions. In addition, colleges must make the final determination in a case in a live hearing where the parties, through their advisors, have the option to cross-examine one another. If one of the parties does not have an advisor, the institution must provide one.
There are several additional requirements, including the parties’ right to examine all evidence gathered in the investigation. These provisions, which are intended to ensure fair treatment for all parties, have drawn concern, as colleges are not legal entities, and also because of indivdiuals’ vulnerability that is inherent in many Title IX proceedings.
Standard of Evidence
Whereas the Obama administration guidance effectively required institutions to use the “preponderance of the evidence” standard (i.e., “more likely than not”) in disciplinary proceedings, the proposed regulation allows an institution to use that as well as the more stringent “clear and convincing evidence” standard. However, in what may be an effort to nudge schools to use the latter standard, institutions could only use the “preponderance” standard if that is the standard used to judge non-sexual harassment campus disciplinary code violations that carry the same maximum penalty (such as academic cheating). In addition, students must be judged under the same standard as employees, including faculty. Many institutions may employ the more “clear and convincing” standard in one or both of these situations.
The proposed regulation seeks to provide more clarity by putting forth safe harbors—institutional responses that are not “deliberately indifferent” per se and, therefore, not Title IX violations. The safe harbors apply when an institution responds to a formal complaint (filed either by the complainant or the Title IX coordinator) with a grievance procedure that meets the regulatory requirements; or in the case of reports absent a formal complaint, the institution offers supportive measures “designed to effectively restore or preserve access to the [institution’s] education program or activity.” Importantly, the regulations state that ED will not consider an institution’s determination of responsibility in a given case to be evidence of deliberate indifference merely because ED would have determined otherwise based on “an independent weighing of the evidence.” In other words, ED will not second-guess the institution’s decision provided it followed procedures that comply with the regulations. Additionally, the regulations state that institutions will not be assessed monetary damages for Title IX violations.
Regulations Not the Final Word on Institutional Action
Finally, it’s important to note that the proposed regulations only address the minimum steps an institution must take in order to comply with Title IX. In most cases, institutions are free to go beyond the regulations, as long as their policies are consistent with them. For instance, colleges may choose to respond to activity even when no report has been made or help students involved in off-campus incidents. It also is hoped that, given the intense focus given to issues of sexual harassment and assault, colleges have developed campus-specific policies that ensure the safety of their students and the ability of all them to fully participate in institutional activities.
For more information, please contact Jim Hermes, associate vice president for government relations, or David Baime, senior vice president for government relations and policy analysis.