Changes to Title IX enforcement on campuses

MUNICIPAL MATTERS

Passed in 1972, Title IX of the Education Amendments Act states that "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."

Title IX applies to educational institutions that receive federal funds, encompassing nearly every college and university in the United States. There are two primary applications of Title IX: athletics and cases involving sexual misconduct.

As the NCAA explains, Title IX requires athletic programs to provide men and women with (1) equitable opportunities to participate in sports, (2) athletic scholarships proportional to their participation, and (3) equal treatment in regards to equipment and supplies, coaching, facilities, support services and more.

Title IX did not originally specify the procedures that must be utilized by higher education institutions in adjudicating allegations of sexual misconduct, harassment and assault. The 2011 Dear Colleague letter, published by the U.S. Department of Education's Office for Civil Rights, was intended to provide that guidance. With this letter, the OCR established the basis for the exercise of federal control over the Title IX and sexual misconduct adjudication policies of higher education institutions.

The Dear Colleague letter contains numerous key provisions:

1. If a school receives a complaint of sexual misconduct that occurred outside of its grounds or outside of an education program, the school must process the complaint in accordance with its established procedures.

2. Schools must use the preponderance of the evidence standard, or "more likely than not" in determining guilt and administering discipline (many schools had traditionally employed a higher clear and convincing standard).

3. Complainants should be allowed to appeal not guilty findings (many schools already enabled complainants to appeal not guilty findings).

4. Cross-examination by the parties is to be discouraged and may be a violation of Title IX.

5. Schools cannot rely upon investigations of criminal conduct by law enforcement authorities to resolve Title IX complaints. Schools must have their own policing and judicial systems in place.

6. It is highly recommended that investigations be completed within 60 days of receiving a complaint.

7. Any due process protections afforded to accused parties should not unnecessarily delay resolving the charges against them.

The 2011 Dear Colleague letter relied on the investigation and findings of the Title IX investigator.

On Sept. 22, 2017, Department of Education Secretary Betsy DeVos announced the rescission of the 2011 Dear Colleague letter.

On Nov. 16, 2018, proposed changes to Title IX enforcement were introduced. The proposed changes affected the deadlines, burden of proof, and due process protections to sexual misconduct allegations.

1. Colleges and universities would not have to respond to complaints that originated off-campus and outside the institution's direct purview.

2. When required to investigate, colleges and universities may use a clear and convincing standard, rather than the preponderance of the evidence standard.

3. Cross-examination by the involved parties would not just be permitted, but be required, including the cross-examination of the accuser.

4. Because the requirements would take more time, the 60 day recommendation for completion would be removed.

5. At the completion of an investigation, the person or persons determining whether or not discipline should be administered, and what this discipline should be, would have to be different from those involved in the investigation of the complaint. In other words, the Title IX investigator would investigate, but the final determination would be made by a third party.

After the introduction of these possible changes, an open comment period was held, and the Department of Education is now reviewing the comments it has received. Some institutions are preparing for the changes to go into effect, but have yet to make any changes themselves. Others have made some changes to their policies, such as extending the time allotted for the completion of investigations.

Higher education institutions need to be aware of the potential for greater litigation under the new rules. It is true that colleges and universities will have greater independence in regards to the complaints they investigate, such as not needing to investigate off-campus complaints, deciding to use the preponderance of the evidence or clear and convincing standard, etc. Colleges and universities could still be held liable if they are deemed to be acting with deliberate indifference to sexual misconduct. In Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), the Supreme Court ruled that teacher-on-student sexual harassment could constitute sex discrimination under Title IX. Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), held that student-on-student sexual harassment could also constitute sex discrimination. Higher education institutions can be held liable for both of these types of sex discrimination.

Even if a college or university is no longer required to investigate a complaint made regarding an off-campus incident, failure to take action on campus to ensure that students who were involved are receiving the full benefits of their education could be perceived as acting with deliberate indifference. This creates an interesting loophole. The college is not required to investigate an off-campus incident but if it has knowledge of that incident and does nothing, and the same parties have an issue on campus, it could be considered deliberate indifference.

The 2011 Dear Colleague letter was concerned with protecting the victim. The 2018 Department of Education is very much concerned with due process rights of the accused. This focus with due process might very well lead to universities and colleges retaining independent hearing officers, much like cities use in administrative enforcement. The hearing would also permit the accused to have outside counsel, the hearings would be audio/videotaped, and subject to appeal by the superior court. This scenario is very different from the Title IX investigations in the past.

We anticipate seeing more direction from the Department of Education with regard to Title IX. Colleges and universities are wise to anticipate these changes so they can revise their policies as necessary.