Schools must rely more heavily on legal counsel to navigate new Title IX rules

California schools will need to rely more heavily on legal counsel to follow new Title IX rules, which established a more narrow definition of sexual harassment while also requiring schools to process complaints about such conduct in a specific way, a labor attorney says.

The new Title IX regulations that went into effect at the end of last week preempts state laws that protect individuals from sexual harassment in school settings, at least when it comes to complaints about conduct that meet the regulations' definition of sexual harassment. The new definition, announced by U.S. Secretary of Education Betsy DeVos in May, applies to conduct that is severe, pervasive, and objectively offensive. This is a departure from the more relaxed standard set by Title VII, which requires conduct to be either severe or pervasive enough to create a hostile workplace environment in order to qualify as sexual harassment, the department noted, adding the new rules would better balance the needs of survivors with the need to ensure the guilt of those accused is not predetermined.

Because complaints about conduct that meet the new standard must be processed through a new grievance process, also announced in May, school administrators are effectively being asked to parse nuances they may not entirely understand, said Jacqueline M. Litra, a partner at Fagen Friedman & Fulfrost, LLP.

"If I tell you and give you an example of something that happened, it's pretty easy to say, 'That's probably sexual harassment'... Now it takes a much more keen understanding of these rules," Litra said. She added the new regulations are "going to require school districts to seek legal counsel in a much greater way - they need a lot more handholding to understand because... there's so much legal nuance in what is 'severe,' what is 'pervasive,' what is 'objectively offensive.'"

"Because of the how significant the procedural requirements are, it's a very important distinction," Litra said.

Pilar Morin, a partner at Liebert Cassidy Whitmore who specializes in education law, said the new definition of sexual harassment and grievance process also obligates schools to juggle multiple complaint processes at once. "Under California law, the Fair Employment and Housing Act, we have a duty to investigate allegations of sexual harassment in the workplace," Morin explained. "If the allegations don't meet the very strict and heightened definition of sexual harassment under Title IX, then we still need to process that under.... local policies and procedures that our schools have."

Understanding which procedure to direct complaints to is just one of the concerns schools have about implementing the new Title IX rules, according to Morin and Litra.

Postsecondary schools, which now must include live hearings in their grievance process, must also provide qualified advisors to parties who don't have access to one. "A lot of our institutions are struggling with how to provide this service because that person has to conduct a cross examination," Morin said. While advisors don't need to be attorneys, Morin added, they need to be trained in Title IX and school policies and procedures.

Litra also noted the potential need to hire more specialized staff. "This is a massive overhaul of how we do things," she said of the new rules. "For a lot of districts, one of the concerns is they require a lot of personnel in order to comply with them... you need probably at least four administrators trained, and some of our clients are small districts that only have one administrator."

Given the pressure on schools to reopen safety or conduct effective distance-learning or hybrid learning models, Litra said the length of time the Department of Education gave schools to comply with the new rules - ninety days - was insufficient.

But recent federal court rulings rejected this notion. Last week, a federal judge in the District of Columbia declined to issue a preliminary injunction to stop the Title IX rules from going into effect, and said the ninety-day window schools had to comply with the rules were adequate since the Department of Education first announced issued a notice of proposed rulemaking in 2018.

"To be sure, schools could not be expected to actually change their policies in important ways based merely on a proposed rule," wrote U.S. District Judge Carl J. Nichols. "But the Final Rule is similar to the proposed rule in most respects, and thus schools have had almost two years to analyze and understand its requirements." Commonwealth of Pennsylvania, et al. v. Elisabeth DeVos, 1:20-cv-01468-CJN (Washington, D.C., filed Jun 4, 2020).

In another federal court in New York, U.S. District Judge John G. Koeltl denied a similar preliminary injunction, writing schools were not at high risk of losing their federal funding by not being in full compliance with the rule by Aug. 14. State of New York v. United States Department of Education et al., 1:20-cv-04260-JGK (S.D., N.Y., filed Jun 4, 2020).

Morin denied the judge's reasoning in D.C. was fair. "The reality is that we schools and colleges didn't really start preparing until they got the final regulations," she said. "You don't want to speculate as to what's going to end up in the regulations."

jessica_mach@dailyjournal.com