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Changes to Title IX Regulations: Compliance and Defense

Title IX of the Education Amendments of 1972 put in place certain protections for victims of sexual assault, misconduct, discrimination, and related wrongs in educational programs or activities. In 2020, for the first time in many years, the US Department of Education made changes to Title IX processes by issuing new regulations regarding Title IX sexual harassment claims. The new regulations make some substantial changes and require federally funded universities and schools to act quickly to remain compliant. For those accused of Title IX violations, the new regulations provide much-needed protections. However, the new Title IX regulations also leave educational institutions with questions about the implications of some of the new regulations.

Educational institutions need an Indiana Title IX lawyer who understands how the new regulations impact Title IX compliance, and anyone accused of Title IX sexual harassment violations needs an attorney who understands how the new rules impact Title IX defense. You’ll find both at Keffer Hirschauer LLP. We are passionate about helping Indiana universities and schools navigate the changing tides of Title IX regulations to protect both the school and defending those accused of a Title IX violation to ensure the protection of their rights.

Contact Keffer Hirschauer LLP today to learn more about what our Indianapolis attorneys can do for you.

The 2020 Changes to Title IX

On May 6, 2020, Secretary Betsy DeVos, the head of the US Department of Education, released the final regulations regarding Title IX sexual harassment claims. The regulations materially alter the nature of Title IX procedures regarding sexual harassment complaints. The changes to Title IX resulting from the new regulations require federally funded universities and schools to change the way they investigate and adjudicate Title IX sexual harassment claims. Schools also must offer protections and more equal footing for those accused of sexual harassment in the educational setting.

While the new regulations add much-needed protections for those accused of sexual harassment in violation of Title IX going forward, they also required universities and schools to hastily make significant changes to current Title IX policies and procedures to secure those protections and to remain compliant with the law. Some educational institutions are likely to struggle with the short timetable to become compliant as well as funding and logistical difficulties.

At Keffer Hirschauer LLP, we have deep knowledge of the Title IX procedures currently in place at Indiana universities and schools and the challenges faced in efforts to become compliant with the new Title IX standards. With a thorough understanding of Title IX law gained through years as successful criminal and Title IX defense lawyers and training as certified Title IX investigators, we provide Title IX guidance to Indiana universities and schools on compliance and protect the rights of employees and students facing Title IX complaints.

For more information on the Title IX investigative process, download our FREE Title IX eBook!

An Overview of Title IX Sexual Harassment

Title IX was enacted to extend sex-based discrimination protections to the educational setting. At its core, the statute prohibits any sex-based conduct that could result in:

  • Exclusion from participation in any educational program or activity

  • Denial of the benefits of an educational program or activity

  • Discrimination in any educational program or activity

Frequently used as the basis for ensuring equal access of both sexes to athletic and other programs, in more recent years it has been interpreted as prohibiting sexual harassment or violence in the educational setting.

With a single sentence in federal law, the legislation has created a litany of obligations on federally funded educational institutions. In recent years, those obligations have been expanded to include the prohibition of sexual harassment. Federal regulations shape the interpretation and enforcement of Title IX. The changes to Title IX rules detailed in the May 2020 regulations alter that landscape, significantly shifting the definitions, procedures, and focus of Title IX cases.

The Changes to Title IX under the 2020 Regulations

The Title IX regulations released in May 2020 ushered in a new direction for Title IX procedures, focusing on or at least adding significant protections for the accused. Where the prior administration’s 2011 “Dear Colleague” letter offered non-binding guidance, the Trump administration’s new rules, which made sweeping changes to Title IX regarding sexual harassment claims, has the force of law.

The new regulations impact how schools must treat and investigate claims of Title IX sexual harassment. Some of the major changes include:

  • A narrower definition of sexual harassment now requires “severe, pervasive, and objectively offensive” conduct. Quid pro quo sexual harassment could meet the definition. A single incident of any type of sexual harassment may not meet the new definition, although stalking, dating violence, and sexual assault do not have to be severe or pervasive to qualify.

  • A narrower definition of locations of incidents schools are required to investigate includes only incidents that occur in the United States during school-owned or -sponsored off-campus activities (such as educational trips or fraternities recognized by the school) but not in independently owned off-campus apartments or in study abroad programs.

  • Colleges may designate only certain employees to have mandatory reporting requirements. However, all employees at K-12 schools are obligated to report Title IX sexual harassment.

  • All Title IX officials at a school must receive training on Title IX and its regulations, including the definition of sexual harassment, how Title IX applies to the school’s programs and activities, how to conduct a formal Title IX grievance process, and how to be an impartial decisionmaker. Colleges and universities must also publish the training materials online.

  • A school at any level that receives a formal complaint must proceed with a formal grievance process, which must include a live hearing with cross examination.

  • Schools may no longer use the single-investigator model. In other words, the Title IX investigator of a sexual harassment complaint cannot also be the person who adjudicates at the hearing.

  • The accused may use a legal adviser or lawyer to cross examine the complainant.

  • A school may raise the burden of proof to the clear and convincing standard as long as the standard applies equally to faculty/employees and students.

  • The school receiving a sexual harassment report must provide the accused in writing the allegations and the evidence gathered. If the accused is a minor, the school must also provide this writing to the parents of the accused.

  • All schools must engage a grievance process for every formal complaint and respond meaningfully and/or offer supportive measures to every known alleged sexual harassment victim.

  • Designated Title IX personnel dealing with a complaint must be free of conflicts of interest regarding the parties to the complaint.

  • Schools must provide anyone accused of Title IX sexual harassment with a written assurance of the presumption of innocence.

  • Schools must retain written records for seven years of sexual harassment complaints and the actions taken in response.

In addition to redefining prohibited conduct, the new regulations also require schools to do the following:

  • Provide supportive measures to both the victim and those accused of Title IX violations to preserve or restore access to educational programs or activities even if no formal complaint is filed.

  • Provide remedies to restore or establish access to educational programming and activities when the investigative and evaluative process results in a finding of responsibility.

  • Offer an appeal process to both parties if offered at all.

  • Allow mediation of a Title IX complaint, an option previously prohibited under Title IX.

Significantly, the new Title IX regulations require schools to investigate a Title IX complaint only if they have actual knowledge of sexual harassment that occurred in the school’s educational program or activity against a person in the United States. This means that the school’s Title IX burden is lessened somewhat in regard to the allegations it is obliged to investigate and adjudicate. Additionally, a school can be held liable under Title IX only if it is deliberately indifferent to known sexual harassment.

At their core, the new rules redefine sexual harassment more narrowly to be “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.” The definition effectively excludes single incidents that do not constitute an actual assault, violence, or stalking. The regulations also adopt the definition of sexual assault from the Clery Act, bringing Title IX into alignment with the Violence Against Women Act.

While the changes to Title IX still do not raise the protections for the accused to the level provided in criminal prosecutions, overall, they significantly increase the due process protections to anyone accused of sexual harassment at a federally funded educational institution.

Title IX Procedures at Indiana Universities and Schools

The procedures for dealing with sex-based harassment and violence claims in Indiana universities and schools before the issuance of the new Title IX regulations were based on the 1972 statute, case law, and relatively recent non-binding guidance from a prior administration. The Obama administration offered direction to universities and schools in the form of a “Dear Colleague” letter in 2011, explaining how that administration interpreted the act. In particular, the letter qualified the definition of sexual harassment and violence as forms of sex-based discrimination. Schools that failed to investigate such allegations risked losing their federal funding.

Any Indiana university or school that receives federal funding must comply with Title IX or risk losing that funding. This has not changed under the new regulations. Each school’s Title IX policy prescribes the process for investigation and resolution of Title IX complaints. These policies and procedures vary across Indiana universities and schools, but they generally contain:

  • Definitions of conduct deemed to violate Title IX

  • The identity of the school’s Title IX coordinator

  • A description of the school’s Title IX investigation and resolution process

  • The deadlines for each stage of the Title IX investigation and resolution process

The substantial shift evident in the changes to Title IX under the 2020 regulations necessarily impacts Title IX policies and the rights of those accused of Title IX violations across the Hoosier state.

What the Changes to Title IX Mean for Indiana Schools

The changes to Title IX regulations impose new burdens that some universities and schools might have struggled to achieve compliance by the rules’ August 14 effective date. With barely three months between the issuance of the rules and their effective date, schools of all levels and sizes will find achieving compliance problematic, especially while juggling the unexpected challenges and costs of educating during a global pandemic.

Certain aspects of the new Title IX regulations are particularly likely to be problematic for schools that need to revamp their Title IX policies to become compliant. For example, large universities may already have an adjudicative process in place that can easily separate investigators from adjudicators and provide depth of personnel to avoid conflicts of interest. However, the elimination of the single investigator model is likely to be extremely difficult for smaller schools both financially and from a personnel point of view. Schools will have to identify and train from a small faculty and staff a much greater number of people to handle the investigations and to adjudicate the complaints. And the newly expanded Title IX personnel must be numerous enough to avoid any conflicts of interest.

Another challenging area involves the new regulations’ requirement that a response on cross examination is required only to relevant questions. The new regulations do not define relevance in this context. Non-lawyers, who are usually the decisionmakers in Title IX cases, are unaware of the vast body of law used to define the term, and the new Title IX regulations do not define it at all. With proceedings pivoting on the understanding and employment of “relevance” without a clear definition, how can schools guarantee compliance with that regulation?

Moreover, schools at all levels are dealing with distance learning, with faculty and staff also working from home in light of the COVID-19 pandemic. While the changes to Title IX specifically allow virtual proceedings, where one or more participants appear using audio and visual technologies, many schools might have struggled to coordinate efforts to revise their Title IX policies in the short time provided while school employees are spread far and wide and connecting only through technology.

At Keffer Hirschauer LLP, we understand the present challenging circumstances and are ready and able to help Indiana’s universities and schools navigate the new Title IX geography. Working with an Indiana Title IX lawyer from our team can help schools evaluate their Title IX policies, identify areas requiring revision for compliance with the changes to Title IX regulations, and work to establish cost-effective policy.

What is Controversial about the New Title IX Regulations?

Some complain that the pendulum has swung too far in favor of those accused of Title IX misconduct to the detriment of the rights of Title IX complainants. The following aspects of the rules are particularly controversial and have garnered objections from learning institutions, legislators, and higher education and survivor groups:

  • Narrower ways in which universities and schools are given notice of alleged sexual discrimination, which could reduce the number of reports the institution must investigate

  • Allowing mediation of sexual harassment allegations, a prohibition put in place to prevent complainants from being pressured into alternative dispute resolution

  • Requirement of a live, quasi-judicial proceeding and allowing schools to increase the Title IX burden of proof to clear and convincing evidence, either of which could also thwart motivation to report sexual harassment

  • Establishing a relatively short timeframe for revising Title IX policies, especially when schools are already dealing with significant turmoil caused by the coronavirus pandemic

Schools have had Secretary DeVos’s letter redefining the direction of interpreting Title IX since 2017. Although not binding, the letter did provide schools some direction and an indication of the changing winds in Title IX law. However, schools did not have definitive, binding guidance until the issuance of the new Title IX regulations in early May 2020. Given the length of time required for the Department of Education to finalize the changes to Title IX, it would not be surprising if some universities or schools did not begin work to completely revamp their Title IX policies in accordance with the new rules until shortly after the rules were issued in May. That left such schools with a short timeframe to achieve compliance.

The reorientation of Title IX to include protection for the rights of the accused and the provision of services to those accused of Title IX violations is a monumental shift. Indiana universities and schools need to revisit their current Title IX policies to make sure they incorporate due process protections in the form of a quasi-criminal proceeding, a level not previously required in Title IX policies, as well as other new obligations established under the 2020 rules.

The experienced Indiana Title IX attorneys at Keffer Hirschauer LLP have been closely monitoring the Trump administration’s approach to Title IX. We are dedicated to helping Indiana universities and schools understand their obligations following the changes to Title IX and implement those changes through sound policy revision and effective defense against Title IX allegations.

Gray Areas Created by Changes to Title IX

Anyone accused of Title IX violations during this period of upheaval is dealing with shifting sands. The new Title IX rules became effective August 14, 2020. Initially, there was no guidance on whether or how the new regulations would apply to pre-existing or pending Title IX complaints. Finally, on August 5, 2020, the US Department of Education Office for Civil Right (OCR) clarified in a blog post how to apply the effective date of the rule changes to Title IX:

  • The new rules apply only to sexual harassment that occurred on or after August 14, 2020.

  • The new rules do not apply to cases involving sexual harassment that occurred before August 14, 2020, allowing schools to use the Title IX policies in place at the time of the incident

Thus, for incidents that allegedly occurred prior to August 14, 2020, the accused cannot take advantage of the increased rights and protections afforded by the new Title IX regulations.

Whether you’re dealing with a complaint dated before or after the effective date of the new rules, you must act swiftly to ensure your rights are protected. Working with experienced Indiana Title IX attorneys who are tracking these legislative changes and familiar with the Title IX processes of different Indiana universities and schools offers you the best chance of protecting yourself against a Title IX complaint.

Resources for Understanding the Changes to Title IX

Universities and schools still wrestling to revise Title IX policies in light of the new regulations need significant guidance. In some areas, the new regulations introduce new requirements and terms without definitions necessary for an indisputable understanding. To understand their new obligations and the Trump administration’s shift in direction evidenced by the changes to Title IX, universities and schools need authoritative guidance.

Some valuable resources for understanding how the new regulations change the direction of Title IX include:

By far, universities and schools benefit most from working with an experienced Title IX lawyer who has a thorough understanding of previous administration Title IX interpretations, how the changes to Title IX through the 2020 final rule change school burdens, and where gray areas exist in the final rule. In Indiana, Keffer Hirschauer LLP attorneys are the go-to resource for schools striving for compliance and in need of defense for Title IX claims.

For Compliance and Defense Matters Following Changes to Title IX, Keffer Hirschauer LLP

Many Indiana universities and schools have recently revised or need to revise their Title IX policies to remain compliant under the new Title IX regulations. Such policy adjustments greatly impact the claims investigated, the services offered to the complainant and the accused, the rights afforded to the accused, and the very nature of the investigation resolution process. Working with a Title IX attorney who is tracking these changes is key to ensuring a school’s federal funding and the protection of rights now guaranteed to those accused.

At Keffer Hirschauer LLP, we know the stakes are high for the accused, so we use our skills, experience, and a close watch of changes to Title IX policy to protect your rights throughout the Title IX process. Our attorneys have completed training and received certifications from ATIXA, a professional association for college Title IX investigators and administrators. We partner vigorous criminal defense practice with our thorough knowledge of Title IX, related legislation, and the current Title IX processes at Indiana schools and universities to give respondents the protection needed to defend against Title IX allegations. Don’t delay. Engaging an experienced Title IX defense lawyer early in the process is key to assuring your rights or the rights of your child are fully protected.

For a free consultation with one of our Indiana Title IX attorneys, call now at (317) 648-9560 or complete our online contact form.