Final Rule under Title Ix Definition of Sexual Harassment

A week after the New Order was released by the Department of Education, the American Civil Liberties Union (ACLU), Know Your IX and other stakeholders filed a lawsuit in Maryland District Court to overturn it. Shortly thereafter, 18 attorneys general filed briefs in another federal court challenging virtually every aspect of the department`s regulations and trial. According to the APA, review tribunals can only repeal administrative rules if they are promulgated “arbitrarily and capriciously”, “beyond legal powers” or in a manner marred by procedural irregularities. While this is an ambitious standard, the courts have given authorities the responsibility to respond to any “material” comments, explaining why they made some changes to the proposal and refused to make others. Much of the agency`s 2,000-page statement is designed to protect the new rules from legal challenges. (For example, the Department of Education offered a seven-page response to the absurd claim that Betsy DeVos wasn`t really the Secretary of Education because her appointment wasn`t confirmed until Senate Speaker Mike Pence broke the tie.) Given that the ACLU`s central argument is that the department erred in adopting the Supreme Court`s framework for “real knowledge”/”intentional indifference,” that argument is unlikely to be a winner — especially if the case makes it all the way to the Supreme Court. The most controversial element of the new rules is the requirement that post-secondary institutions (but not elementary and secondary schools) hold live disciplinary hearings and allow for cross-examination of witnesses in cases of sexual misconduct. Obama-era guidelines did not prohibit live hearings and cross-examination; They “discouraged” but did not prohibit the accused from personally cross-examining their accuser. (For the sake of clarity, I will now adopt the wording of the new rules by referring to the purpose of the alleged misconduct as a “complainant” and the alleged perpetrator as a “respondent.”) However, in negotiations with individual schools, the OCR strongly opposed live hearings and cross-examinations, encouraging them to adopt the “single investigator” model.

About one-third of schools affected by OCR have adopted this approach. The procedural mandates contained in the final regulations are more detailed than those contained in the Obama administration`s 2011 and 2014 guidelines. At the beginning of an investigation, a school must provide both parties with a written explanation of the allegations with “sufficient detail known at that time and sufficient time to prepare a response before each initial interview.” If the nature of the allegations changes during the course of the investigation, this must also be communicated to both parties in writing. Both parties have the right to access all evidence collected by the investigator. At least 10 days before the hearing, both parties must receive a written report that “accurately summarizes the relevant evidence.” At the end of the hearing, “decision-makers” must provide “a statement and justification of the outcome of each claim.” Any party may appeal this decision on the basis of (1) procedural irregularities, (2) new evidence or (3) bias on the part of investigators or decision-makers. The 2018 proposal did not allow the complainant to appeal sanctions that he considered too lenient. The final version lifted this ban and allowed schools to decide “whether the severity or proportionality of sanctions is an appropriate basis for appeal.” However, following the general rule that identical rights must be granted to the appellant and the respondent, it added that “any such complaint … must be offered equally to both parties. To effectively meet all new requirements, school districts must ensure that their Title IX coordinator, as well as all investigators, decision-makers and anyone facilitating an informal resolution process, receive the necessary training. The training must include the new definition of sexual harassment in accordance with the final rule; the extent of the school`s education or activity; how to conduct a review; and the complaints process. A school must ensure that decision-makers are trained on relevant issues, avoiding bias on contentious issues, conflicts of interest and prejudice.

In determining whether the behaviour is considered “sexual harassment”, there are a number of factors that an institution can consider. The elements of gravity, penetration and objective insult must be assessed in the light of the known circumstances and depend on the facts of each situation, but must be determined from the point of view of a reasonable person standing in the complainant`s place. The Davis standard does not require an “intent” element. In other words, undesirable behaviour that is so serious, pervasive and objectively offensive that it deprives a person of equal educational opportunity is sexual harassment that is subject to prosecution, regardless of the respondent`s intention to cause harm.