Key provisions

The Final Rule requires most higher education institutions to rethink and restructure the way they handle allegations of sexual harassment, from intake through appeals.

These are the key provisions:

• The Final Rule establishes a new definition of sexual harassment that includes not only traditional claims of quid pro quo and hostile work environment harassment, but also now explicitly includes sexual assault, dating violence, domestic violence and stalking.
• Unlike the common “mandatory reporter” model, higher education institutions will now only be charged with notice and an obligation to respond to allegations of sexual harassment if they have “actual knowledge” through their Title IX Coordinator or those with authority to issue corrective measures.
• The sufficiency of the institution’s response to Title IX allegations will now be judged on the “deliberate indifference standard” and whether the actions of the institution were “clearly unreasonable in light of the known circumstances.”
• The Final Rule eliminates the use of the “single-investigator model” and, instead, requires that final determinations be made by separate hearing or appeal processes during which the investigator cannot be the hearing officer or handle the appeal.
• Higher education institutions must hold live hearings on Title IX complaints, including the right of cross-examination by the parties’ advisors (who may be attorneys), and institutions must provide an advisor to parties free of charge.
• Institutions may select either the preponderance of evidence or clear and convincing evidence standard as the burden of proof at the hearing. However, whichever standard is selected must be the same for all Title IX matters involving students, staff and faculty.
• Either party may appeal the institution’s determination. The appeal officer(s) may not be the same as the hearing officer(s) or the investigator.

Implications

With an August 14, 2020 effective date, the Final Rule leaves higher education institutions very little time to become compliant with the new regulations. While many institutions had already moved away from the single-investigator model, others will likely need to identify personnel to act as hearing officer(s) and handle appeals. Those individuals will also need to receive mandated training.

In addition, at most colleges and universities, current investigation, hearing and appeal policies and procedures will likely require significant revisions to become compliant.

Action items

While court challenges may delay enforcement, institutions may want to consider the following immediate actions:

• Conduct a gap analysis to determine needed changes to processes and policies, in consultation with in-house and/or outside counsel.
• Identify appropriate institutional personnel to act as investigator(s), to serve as hearing officer(s) and handle appeals.
• Provide required training to institutional personnel consistent with the new regulations.
• Develop a communication strategy and plan to inform the campus community of new policies, procedures and personnel required under new regulations.

This publication is for informational purposes only and does not constitute legal, tax or investment advice. You are encouraged to discuss the issues raised here with your legal, tax and other advisors before determining how the issues apply to your specific situations.