On May 6, the Department of Education completed a nearly 18-month-long process of reforming how educational institutions must handle Title IX complaints by publishing new regulations that take seriously the rights of complainants and accused students alike.
The new regulations, barring congressional or judicial intervention, take effect on Aug. 14 and will ensure that allegations of sexual misconduct are neither ignored nor prejudged. FIRE has long held the view that to appropriately address sexual misconduct, universities have to be concerned about the rights of both student complainants and those they accuse. Unfortunately, we live in a world where there are people who are victims of sexual misconduct, and where people are also sometimes wrongly or mistakenly accused. Proper investigations and adjudications with meaningful safeguards are the only way to do right by everyone.
Before diving into an analysis of the regulations, it’s worth noting that, in contrast to the subsequently rescinded Department of Education April 4, 2011, “Dear Colleague” letter and accompanying 2014 Title IX guidance, these new regulations went through an extensive notice-and-comment process soliciting input from a broad array of stakeholders. As a consequence — despite the hyperbole from opponents — the new regulations reflect a far more balanced approach and will, thankfully, have the actual force of law.
The regulations are accompanied by nearly 2000 pages of commentary from the Department of Education, where the department addresses the input it received during the notice-and-comment process. The regulation itself begins on page 2008.
Restoring Title IX’s focus on a complainant’s access to education
The Title IX focus in some ways became less about what an institution could do to help a complainant continue his or her education, and more about meting out punishment to those deemed offenders.
One key feature of the new regulations is that they recognize that Title IX, when enacted, was never meant to create a shadow justice system. Rather, it was designed to ensure that sex-based discrimination did not drive students away from pursuing their education. Over the years, courts interpreting institutional obligations to address sexual misconduct (which became a recognized form of sex discrimination under Title IX) concluded that institutions must promptly and equitably investigate and adjudicate allegations. The gist of this interpretation was that if sexual misconduct was allowed to run amok, women in particular would feel less comfortable pursuing their education, and would be chilled from doing so.
What resulted was the creation of campus judiciaries, investigating and deciding often very difficult fact-intensive inquiries into allegations of sexual misdeeds. These proceedings, which some institutions unashamedly insist are purely educational in nature despite the fact that they are clearly punitive (expulsion is not educational), became an end-run around the justice system that many in the victims’ rights community believe routinely let complainants down.
The Title IX focus in some ways became less about what an institution could do to help a complainant continue his or her education, and more about meting out punishment to those deemed offenders. To refocus schools’ attention on addressing a complainant’s ability to stay in school, the regulations (Section 106.44(a)) require schools
to offer supportive measures to every complainant, by engaging in an interactive process by which the Title IX Coordinator contacts the complainant, discusses available supportive measures, considers the complainant’s wishes with respect to supportive measures, and explains to the complainant the option for filing a formal complaint. Title IX Coordinators are responsible for the effective implementation of supportive measures, and under revised § 106.45(b)(10) if a recipient’s response to sexual harassment does not include providing supportive measures to a complainant the recipient must specifically document why that response was not clearly unreasonable in light of the known circumstances (for example, because the complainant did not wish to receive supportive measures or refused to discuss supportive measures with the Title IX Coordinator when the Title IX Coordinator contacted the complainant to have such a discussion). Thus, unless a complainant does not desire supportive measures (i.e., refuses the offer of supportive measures), complainants must receive supportive measures designed to restore or preserve the complainant’s equal educational access, regardless of whether a grievance process is ever initiated.
For further context, the regulations define “supportive measures” as
non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the recipient’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the recipient’s educational environment, or deter sexual harassment. Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures.
In essence, this definition and the provision cited above mean that whether a complainant receives ongoing counseling, or classroom or housing accommodations, will be determined based on what the institution reasonably believes is in that student’s best interests, and not on whether his or her complaint can be sufficiently proved to justify punishing the alleged assailant. This is a victory for complainants because under this framework, in a close case where there is not enough evidence to justify punishing an alleged assailant, the institution must still make efforts to ensure the complainant has equal access to education.
Protecting all potential complainants
Over the years, it has become clear that campus sexual misconduct is not limited to heterosexual contexts. This important fact is recognized in a powerful statement that all are entitled to an education free from sex-based discrimination. The new preamble to the regulations declares:
For consistency, throughout this preamble we use the acronym “LGBTQ” while recognizing that other terminology may be used or preferred by certain groups or individuals, and our use of “LGBTQ” should be understood to include lesbian, gay, bisexual, transgender, queer, questioning, asexual, intersex, nonbinary, and other sexual orientation or gender identity communities. We use the phrase “persons of color” to refer to individuals whose race or ethnicity is not white or Caucasian. We emphasize that every person, regardless of demographic or personal characteristics or identity, is entitled to the same protections against sexual harassment under these final regulations, and that every individual should be treated with equal dignity and respect.
It’s doubtful that many in the LGBTQ community would have predicted that this administration would so clearly declare that they are entitled to protection from sexual harassment in educational environments, but this is an unambiguous statement that the law must protect all students.
Granting complainants more control over the process and respecting their privacy
The regulations take a number of concrete steps to grant complainants more control over how to proceed with their complaints. For example, on pages 52–53 of the commentary accompanying the regulations, the Department explains that the regulations allow universities to “decide which of their employees must, may, or must only with a student’s consent, report sexual harassment to the recipient’s Title IX Coordinator (a report to whom always triggers the recipient’s response obligations, no matter who makes the report).” This framework allows the institutions to decide who has the responsibility to report complaints up the chain. Victims’ rights advocates have long argued, and FIRE agrees, that providing some confidential avenues to discuss these sensitive issues without putting formal investigations in motion is important to foster an environment where victims can seek help. FIRE would have rather had the regulations make clear that faculty should generally not be deemed mandatory reporters, but we appreciate that the regulations, at a minimum, continue the practice of allowing for institutions to create confidential avenues for victims.
Another prominent protection for complainants is provided in Section 106.45(b)(5), which states that an institution
cannot access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the recipient obtains that party’s voluntary, written consent to do so … .
Under this language, medical records that would ordinarily be deemed relevant are only allowed if the party provides the medical record themselves or consents to their use in the proceeding. Prohibiting the use of medical records is typically warranted, but the regulation’s across the board prohibition, rather than a rebuttable presumption of their inadmissibility, could pose due process concerns in the subset of cases where the medical records completely negate a complainant’s claims. In either event, it’s hard to square the presence of this provision (and many others) with the assertion of critics that the regulations are designed to silence complainants.
Another important way the regulations support complainants’ ability to decide how to proceed is by allowing institutions to offer informal resolution processes
Another important way the regulations support complainants’ ability to decide how to proceed is by allowing institutions to offer informal resolution processes, like mediation and other alternative dispute resolution processes that focus on restorative justice. Under Section 106.45(b)(9), these informal procedures may be offered only after a formal complaint is filed, to ensure that schools don’t steer students down this path to conceal the number of allegations on their campuses. What’s more, these procedures may be used only after both students are advised in writing of their options and provide their written consent. If either student changes their mind prior to agreeing to informal resolution, the institution can pursue the formal grievance procedures subject to the protections described below. Because of the power disparity, institutions are forbidden from offering informal resolution in cases involving allegations that an employee sexually harassed a student.
Allowing students to pursue informal options could encourage more complainants to come forward, given that they might be hesitant to go through a formal process for any number of reasons. FIRE has heard of cases where an alleged victim chose not to come forward because they wanted their alleged assailant to take responsibility for their wrongdoing, but did not want them branded rapists or expelled. By granting students the autonomy to decide how to proceed, the regulations again restore Title IX’s focus on ensuring equal educational access.
Demanding the use of fair procedures to adjudicate Title IX complaints
At the heart of the regulations are robust procedural requirements that institutions will need to follow when investigating and adjudicating Title IX complaints. While it is tempting to think about procedural protections only through the lens of their benefit to accused students, they also play a vital role in protecting the interests of complainants. After all, it is the process of thoroughly vetting accusations that gives findings of responsibility their legitimacy.
To ensure that the institution’s entire response to a complaint is mindful of the rights of all students, Section 106.45(b)(1)(iii) states that the rules:
Require that any individual designated by a recipient as a Title IX Coordinator, investigator, decision-maker, or any person designated by a recipient to facilitate an informal resolution process, not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.
Through every step of the adjudicatory process, the regulation’s guiding principle is that procedural guarantees of impartiality will lead to more accurate findings, to everyone’s benefit.
Detailed Notice of Allegations and the Presumption of Innocence
By requiring institutions to disclose all of the evidence in their possession, the parties might be able to identify evidence that the institutions themselves don’t initially recognize as significant.
An important provision of the regulations (Section 106.45(b)(2)) therefore requires institutions that have received a formal complaint to provide a detailed written notice to the known parties. That notice, which must be sent prior to interviewing the accused student about the allegations, must disclose “the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment under § 106.30, and the date and location of the alleged incident, if known.” Importantly, it must also include an express statement that the accused student is “presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process.” The notice must also advise both parties of their right to “have an advisor of their choice, who may be, but is not required to be, an attorney, under paragraph (b)(5)(iv) of this section, and may inspect and review evidence under paragraph (b)(5)(vi) of this section.”
Prior to these regulations, institutions only needed to disclose the evidence they intended to use during the proceedings (and often didn’t even do that!). This allowed schools to suppress inculpatory or exculpatory evidence to shape the record to the institution’s preferred result. Even setting aside potential institutional bias, by requiring institutions to disclose all of the evidence in their possession, the parties might be able to identify evidence that the institutions themselves don’t initially recognize as significant.
Sections 106.45(b)(5)(iii) and 106.71 of the regulations respectively forbid schools from issuing gag orders on the parties preventing the students from discussing their cases publicly or otherwise retaliating against them.
Live Hearings and Cross-Examination
Crucially, Section 106.45(b)(6) states that the institutional “grievance process must provide for a live hearing” where “the decision-maker(s) must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.” The regulations clarify that “[s]uch cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally, notwithstanding the discretion of the recipient under paragraph (b)(5)(iv) of this section to otherwise restrict the extent to which advisors may participate in the proceedings.” When a student does not have an advisor to conduct the cross-examination, the regulations instruct institutions to “provide without fee or charge to that party, an advisor of the recipient’s choice, who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that party.”
Importantly, the section continues by stating:
If a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.
In other words, neither party’s silence can be held against them, but a party’s or witness’ testimony can only be considered if it is subject to proper scrutiny.
Cross-examination is limited to relevant questions, with the decision maker(s) making that determination and explaining any decision to exclude a question deemed irrelevant. To protect the rights of complainants, the regulations decisively conclude:
Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.
Requiring institutions to allow cross-examinations through advisors is a crucial step in the right direction, but it’s worth noting that allowing schools to restrict advisor participation to that phase of the proceeding is perhaps the biggest shortcoming in the regulations with respect to procedural safeguards. Under this restriction, the student least capable of defending him or herself will be left to advocate for themselves during all other phases of the proceeding, often arguing their cases against trained adults who handle these proceedings for a living. And it’s important to remember that students’ liberty is most at risk when they are being questioned, since statements made by students in campus proceedings may be admissible against them in subsequent criminal proceedings.
Standard of Evidence, Burdens of Proof, and Consent
Other important procedural protections include allowing schools to choose between the preponderance of the evidence standard and the clear and convincing standard, provided each institution uses the same standard in student and faculty proceedings. FIRE has long argued that the preponderance standard, which requires only that the fact-finder believes it is more likely than not that the accused is responsible, is inappropriate in settings that don’t include robust procedural protections. If schools consistently provided meaningful protections in these grievance procedures, as our civil courts do, its use would become less objectionable.
Speaking of burdens of proof, while the regulations do not adopt a particular definition of consent, the commentary accompanying the regulations makes clear that institutions may not use a definition of consent to shift the burden of proof onto the accused to prove they obtained consent. The Department explains:
Regardless of how a recipient’s policy defines consent for sexual assault purposes, the burden of proof and the burden of collecting evidence sufficient to reach a determination regarding responsibility, rest on the recipient under § 106.45(b)(5)(i). The final regulations do not permit the recipient to shift that burden to a respondent to prove consent, and do not permit the recipient to shift that burden to a complainant to prove absence of consent.
This explanation makes clear that institutions always bear the complete burden of proof.
While FIRE continues to believe that the clear and convincing standard is the more appropriate standard to use in campus disciplinary hearings (not just Title IX hearings), schools that faithfully provide all of the procedural protections required by these regulations will have significantly ameliorated our concern about using the preponderance standard.
FIRE has long criticized dual appeals as subjecting an accused student to a situation analogous to double jeopardy
A final procedural safeguard provided in the regulation is that it requires institutions to offer appeals to both of the parties. Prior to the regulations, a school had to offer appeals to both parties or none at all. The regulations remove this choice. FIRE has long criticized dual appeals as subjecting an accused student to a situation analogous to double jeopardy, but dual appeals have been required by Congress since the passage of the 2013 Reauthorization of the Violence Against Women Act. While we are still critical of dual appeals, at least the requirement that schools offer appeals will ensure that accused students who believe they have been erroneously held responsible will have some recourse.
Using the Supreme Court’s standard for harassment
The regulations define actionable sexual harassment to include any of three types of sexual misconduct: “quid pro quo harassment by an employee, severe and pervasive and objectively offensive unwelcome conduct that denies a person equal educational access, or any of the four Clery Act/VAWA sex offenses – sexual assault, dating violence, domestic violence, or stalking).” Quid pro quo harassment is defined as “[a]n employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on the individual’s participation in unwelcome sexual conduct.” The Clery Act/VAWA offenses are defined by VAWA. The definition of peer-on-peer harassment was taken directly from the Supreme Court of the United States, in the 1999 decision Davis v. Monroe County Board of Education. The Davis decision, authored by Justice O’Connor and joined by Justices Ginsburg, Breyer, Souter, and Stevens, carefully defined peer-on-peer harassment to ensure that educational institutions could address conduct that denied equal educational access without requiring them to punish constitutionally protected speech. Under the new Title IX regulations (§ 106.30), which closely track the Davis decision, peer-on-peer harassment is defined as “[u]nwelcome 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.”
As FIRE explained last year, the Davis standard “was carefully crafted by the Court to avoid putting educational institutions in a position where they would have to infringe upon students’ right to free expression in order to avoid liability for their own actions, or lack thereof.” Expanding on this point in The Wall Street Journal this week, FIRE Executive Director Robert Shibley further detailed that the carefully crafted Davis standard is necessary because it represents
a substantial improvement over the current patchwork of rules, which invite censorship of speech or behavior that is both constitutionally protected and not harassment. In Title IX’s name, colleges over the years have banned what they characterize as “derogatory cartoons,” “innuendo” and “sexually suggestive statues.” Students and professors’ political, academic and artistic speech deserves protection.
There are critics who allege that the Davis standard is too rigid and specifically that it requires schools to wait until someone is denied access to education before it is triggered, but that criticism is misguided. In the commentary accompanying the new regulations, the Department of Education directly addresses those arguments over the span of dozens of pages:
The Department appreciates the opportunity to clarify that, contrary to many commenters’ fears and concerns, this element does not require that a complainant has already suffered loss of education before being able to report sexual harassment. This element of the Davis standard formulated in § 106.30 requires that a person’s “equal” access to education has been denied, not that a person’s total or entire educational access has been denied. This element identifies severe, pervasive, objectively offensive unwelcome conduct that deprives the complainant of equal access, measured against the access of a person who has not been subjected to the sexual harassment. Therefore, we do not intend for this element to mean that more victims will withdraw from classes or drop out of school, or that only victims who do so will have recourse from their schools. This element is adopted from the Supreme Court’s approach in Davis, where the Supreme Court specifically held that Title IX’s prohibition against exclusion from participation, denial of benefits, and subjection to discrimination applies to situations ranging from complete, physical exclusion from a classroom to denial of equal access. In line with this approach, the § 106.30 definition does not apply only when a complainant has been entirely, physically excluded from educational opportunities but to any situation where the sexual harassment “so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” Neither the Supreme Court, nor the final regulations in § 106.30, requires showing that a complainant dropped out of school, failed a class, had a panic attack, or otherwise reached a “breaking point” in order to report and receive a recipient’s supportive response to sexual harassment. The Department acknowledges that individuals react to sexual harassment in a wide variety of ways, and does not interpret the Davis standard to require certain manifestations of trauma or a “constructive expulsion.” Evaluating whether a reasonable person in the complainant’s position would deem the alleged harassment to deny a person “equal access” to education protects complainants against school officials inappropriately judging how a complainant has reacted to the sexual harassment. The § 106.30 definition neither requires nor permits school officials to impose notions of what a “perfect victim” does or says, nor may a recipient refuse to respond to sexual harassment because a complainant is “high-functioning” or not showing particular symptoms following a sexual harassment incident.
Clarifying the scope of universities’ jurisdiction under Title IX to reflect the Supreme Court jurisprudence
The regulations rely on the Davis decision for more than just the definition of peer-on-peer harassment. They also use Davis to delineate schools’ jurisdiction under Title IX. A key holding of the Davis decision is that schools can only be held liable if they were deliberately indifferent to known acts of peer sexual harassment occuring in the context of a program or activity under the school’s control. The Court required actual knowledge and imposed the deliberate indifference standard because only when an educational institution was aware of someone else’s misconduct, and it failed to adequately respond, could it be said that it engaged in any wrongdoing.
The Supreme Court’s limitation on a school’s liability to address misconduct occurring in a program or activity under the institution’s control was an important jurisdictional limit, to ensure that schools did not become 24/7 police of students’ behaviors. The restriction of a campuses’ authority to conduct occurring in a program and activity actually originates from the text of Title IX itself, which states, “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[.]” (Emphasis added.)
Critics concerned that this jurisdictional limit would prevent institutions from addressing sexual misconduct occurring at fraternity or sorority events should note that § 106.44(a) of the regulations expressly provide that “Title IX obligations are triggered when sexual harassment occurs in an off-campus location not owned by the postsecondary institution but that is in use by a student organization that the institution chooses to officially recognize such as a fraternity or sorority.”
It’s important to remember that when students are victims of sexual violence that occurs outside of the jurisdiction of Title IX, they are not left without potential remedies from law enforcement and courts. Even then, schools will always have the discretion to provide support services when appropriate.
Schools must now train their personnel using published and unbiased materials
Over the years, one consistent problem that has plagued Title IX enforcement is universities’ use of training that undermines the impartiality of the process. In one historically egregious example, back in 2011, Stanford University’s training materials instructed campus tribunals that being impartial is the equivalent of siding with the accused. As FIRE reported at the time:
The training materials for Stanford’s “Dean’s Alternative Review Process,” which handles sexual harassment and misconduct cases, inform student jurors that they must be “very, very cautious in accepting a man’s claim that he has been wrongly accused of abuse or violence,” claiming that “[t]he great majority of allegations of abuse-though not all-are substantially accurate,” and that “an abuser almost never ‘seems like the type.’” Much of these training materials are comprised of an extended excerpt from a book titled Why Does He Do That: Inside the Minds of Angry and Controlling Men, and unfortunately seem to be less concerned with making sure the jurors serve as impartial decision makers than with pushing the idea that male students accused of sexual misconduct should be presumed guilty.
The new regulations will ensure that those involved in campus investigations and adjudications are properly trained. Section 106.45(b)(1)(ii) requires
that any individual designated by a recipient as a Title IX Coordinator, investigator, decision-maker, or any person designated by a recipient to facilitate an informal resolution process, not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent. A recipient must ensure that Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, receive training on the definition of sexual harassment in § 106.30, the scope of the recipient’s education program or activity, how to conduct an investigation and grievance process including hearings, appeals, and informal resolution processes, as applicable, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias. A recipient must ensure that decision-makers receive training on any technology to be used at a live hearing and on issues of relevance of questions and evidence, including when questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, as set forth in paragraph (b)(6) of this section. A recipient also must ensure that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence, as set forth in paragraph (b)(5)(vii) of this section. Any materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, must not rely on sex stereotypes and must promote impartial investigations and adjudications of formal complaints of sexual harassment … .
And to ensure that the materials are truly unbiased, § 106.45(b)(10)(i)(D) demands that
[a] recipient must maintain for a period of seven years records of … [a]ll materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process. A recipient must make these training materials publicly available on its website, or if the recipient does not maintain a website the recipient must make these materials available upon request for inspection by members of the public.
Exposing training materials to public scrutiny will ensure that they are unbiased and take the rights of complainants and respondents both into account.
There is no simple way to address sexual misconduct on college campuses. Doing so effectively and fairly requires championing the rights of all students, whether they are complainants or the accused.
While schools are wary of adding additional procedural safeguards, the stakes are too high for all involved to avoid doing so. Robust procedures are necessary to ensure results are reliable to everyone’s benefit. Allegations must not be ignored or prejudged. These regulations — while imperfect — go a long way towards ensuring our schools do right by all.