By Katherine Demedis and Olivia O’Hea

Nine on IX: A Series of Articles Considering the New Title IX Rule

This is the first in a series of nine articles on the Department of Education’s new Title IX rule, which becomes effective on August 14, 2020.  The series is focused on changes that schools will likely need to make to their existing Title IX policies to comply with the new rule. 

On May 19, 2020, the U.S. Department of Education published new regulations implementing Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in education programs and activities that receive Federal financial assistance.  The regulations, which take effect on August 14, 2020, codify for the first time that sexual harassment, which includes forms of sexual violence, is a form of sex discrimination prohibited by Title IX.  The regulations also set forth new requirements for Title IX grievance procedures to address allegations of sexual harassment.

Significantly, the new regulations limit the scope of sexual harassment to which an institution is required to respond under Title IX by providing a narrower definition of sexual harassment than the one promoted through sub-regulatory guidance by the Bush and Obama administrations and by placing jurisdictional limitations on conduct that otherwise meets this definition.

This article explains when a school is required to address conduct under Title IX. A school’s obligations under Title IX are triggered when the school has (1) actual knowledge (2) of alleged sexual harassment (3) that occurred within its education program or activity (4) against a person in the United States.

Actual Knowledge

A school’s obligation to act is triggered only when the school has actual knowledge of alleged sexual harassment, and the new rule limits the types of employees who are deemed to have actual knowledge.  For a post-secondary school, actual knowledge occurs when notice of alleged sexual harassment reaches either a school’s Title IX Coordinator or a person with “authority to institute corrective measures” on behalf of the school, referred to as an “official with authority.”  Under the prior guidance, schools were required to designate a wider group of employees—those who had authority to redress harassment, a duty to report harassment, or who a student reasonably believed had that authority or responsibility—as “responsible employees”.  This led many institutions to classify many, if not all, employees as mandatory reporters.

Under the new regulations, schools may impose mandatory reporting duties on as many employees as they would like; however, they are only required to impose these duties on the Title IX Coordinator or officials with authority. This narrower definition means that there can be more staff and faculty members to whom students can confidentially disclose sexual harassment without having it reported to the Title IX Coordinator because fewer employees are required to be classified as mandatory reporters.  The narrower definition also may limit the school’s potential liability by reducing the number of intake points.

As a result, institutions should revise their policies to clearly identify which employees have “authority to institute corrective measures” so that both students and employees know who qualifies as an “official with authority”.

Sexual Harassment Defined

The new rule also includes a new definition of sexual harassment, which is more limited than the definition of sexual harassment that the Department previously set forth in Obama-era guidance and in other federal laws including Title VII, which prohibits sex discrimination in the workplace. The definition includes three types of conduct that each qualify as sexual harassment: (1) quid pro quo (“this for that”) behavior; (2) unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; and (3) Clery Act crimes, including sexual assault, dating violence, domestic violence, or stalking (commonly known as Violence Against Women Act or VAWA crimes).

Any conduct that does not fall under quid pro quo or constitute a VAWA crime must be severe and pervasive to be considered Title IX sexual harassment.  In contrast, other federal laws like Title VII consider conduct to be sexual harassment if it is severe or pervasive.  This means that conduct—such as a single comment or even a physical act—that is severe but not pervasive would not be considered “Title IX sexual harassment.”

Institutions need to include this new definition of sexual harassment in their Title IX policies, as well as the definitions of the VAWA crimes (which institutions already are required to publish under the Clery Act).

Education Program or Activity

The Department also limited the definition of education program or activity for purposes of determining whether the institution is required to respond to sexual harassment.  Schools are required to respond to sexual harassment under Title IX only if the alleged conduct occurred in the school’s “educational program or activity,” which includes only those “locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the sexual harassment occurs.” This includes any building owned or controlled by a student organization that is officially recognized by the recipient, such as fraternity or sorority housing.

In order to determine whether the school exercises substantial control, it may consider whether it funded, promoted, or sponsored the event or circumstance where the alleged harassment occurred; however, no single factor is determinative in defining substantial control for the purposes of the new Title IX rule. The new regulations require schools to train every Title IX Coordinator and all administrators involved in the Title IX investigation and hearing process on the scope of the school’s education program or activity.

Unlike the Department’s withdrawn 2011 guidance, which required schools to process complaints “regardless of where the conduct occurred” to determine if the conduct created a hostile environment on campus, this new definition excludes some conduct that occurs off-campus, even if it occurs among students or employees.  For example, a school may determine that a sexual assault that occurs off-campus in private housing between two students does not occur in the school’s education program or activity because the school does not have substantial control over the circumstances.  As a result, the school would not be required to address the sexual assault through its Title IX policies.

In the United States

Finally, a school is required to respond to sexual harassment that occurs against a person only in the United States. If the conduct occurred outside of the United States—for example, in a study abroad program—the school does not have to address it under the procedures set forth in the new regulations.

Conduct that is Not Covered by Title IX

Because the new rules limit the misconduct to which a school has an obligation to respond under Title IX, schools must decide how to address other misconduct, which may have previously been addressed under a general sexual misconduct policy that complied with Title IX.

If a school wants to address sexual misconduct that does not qualify as “Title IX sexual harassment,” it has the option of handling such misconduct through its Title IX grievance procedures or through a separate policy or existing code of conduct.   There are pros and cons to either approach.

Having multiple processes for sexual misconduct could be confusing and time-consuming to maintain.  On the other hand, using the new Title IX grievance procedure for all sexual misconduct means conducting a hearing and meeting the new cross-examination requirements for all complaints resolved through a formal process, which will likely be more burdensome and costly than the school’s alternative misconduct processes.

In addition, victims-rights advocates have criticized the new Title IX grievance procedure requirements for potentially re-traumatizing victims by requiring testimony, including cross-examination, so schools may prefer to use alternative misconduct processes for non-Title IX sexual harassment claims.  If schools choose to use alternative processes for non-Title IX sexual harassment claims, they will still need to ensure the accused is afforded appropriate due process to minimize the risk of future litigation.