The Fourth Circuit Court of Appeals recently decided what constitutes actual notice for sexual harassment in Title IX cases. A school has actual knowledge, also referred to as actual notice, when a report is made to any school official, regardless of whether the school has substantiated the facts of the alleged assault. This ruling impacts schools and other organizations subject to Title IX if they fail to properly protect students and investigate claims once a sexual assault has been reported.
Oprah Winfrey’s primetime television interview with the Duke and Duchess of Sussex, Prince Harry and Meghan Markle, revealed deep issues within the workings of a historic institution, one we only read about in books or watch on fictional shows like “The Crown.” While the former senior members of the royal family were talking about their feelings and treatment under the backdrop of family dynamics, they were also discussing a monarchy with an institutional framework that can best be compared to a corporate workplace. References to their family as “the firm” and “going to HR” for assistance were phrases used by Harry and Meghan when discussing the institution.
Less than 50 days into his presidency, President Biden signed an executive order on March 8, 2021, directing the U.S. Department of Education (DOE) to conduct a review of the controversial Title IX regulations (the Rules) that were spearheaded by the previous Secretary of Education, Betsy DeVos, to determine if they align with the policies of the Biden administration.
This executive order signals the importance of Title IX to the new administration. President Biden’s directive in the executive order demonstrates that his administration is taking steps to dismantle policies, regulations, and agency actions put in place by the Trump Administration that do not align with his policies and goals.
Despite 18 attorneys general, including Delaware, Pennsylvania, New York, and Washington, DC, vigorously challenging the substance of the new Title IX Regulations (the Final Rule) and its August 14 effective date by filing a Motion for Preliminary Injunction, two days before the regulations were set to take effect, federal District Court Judge Carl Nichols issued an opinion denying the injunction.
The U.S. Department of Education (DOE) released an unofficial version of the Final Rules on May 6, 2020, requiring colleges, universities, and public school districts to comply with the new regulations by August 14, 2020. Many schools had to conduct wholesale revisions of their existing Title IX policies, procedures, supporting forms, and training to conform to the new federal regulations while handling unpredictable challenges and swift modifications to school operations resulting from the COVID-19 pandemic. A number of organizations filed a brief in support of the attorneys general’s motion. The American Council on Education and 60 higher education groups also opposed the new regulations, echoing the concerns of the attorneys general and characterizing the regulations’ effective date as “cruel” and “counterproductive” in light of the pandemic.
While many individuals and organizations have provided commentary and criticism over the revised Title IX regulations (the Rules) released in early May amidst the COVID-19 pandemic, 18 states’ attorneys general have collaborated to file suit challenging the changes to the Rules. The suit filed on June 4, 2020, in the U.S. District Court for the District of Columbia is believed to be the first to challenge the controversial revisions to the Title IX regulations. The lawsuit is led by California Attorney General Xavier Becerra, Pennsylvania Attorney General Josh Shapiro, and New Jersey Attorney General Gubir Grewal. Additional state attorneys general that signed on to the suit include Colorado, Delaware, Illinois, Massachusetts, Michigan, Minnesota, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and Washington, D.C.
Who would have thought in the fall of 2019, when we were all waiting with bated breath for U.S. Secretary of Education Betsy DeVos to issue the new Title IX regulations that the regulations would instead be issued in the spring during a pandemic? Yes, indeed— the new Title IX regulations are here and have arrived when all students and educators are working remotely. Of particular note:
- Cross-Examination: Cross-exam is now permitted by “advisors” to the students. Advisors can be attorneys, but do not have to be. That means non-lawyers will be allowed to cross-examine with no judge and no rules of evidence.
- Sexual Harassment: The Department of Education (DOE) opted to diverge from Title VII’s definition of sexual harassment and instead use the Supreme Court’s Title IX-specific definition to require that sexual harassment be both severe and pervasive (instead of “or” pervasive), as well as objectively offensive.
- Study Abroad: The DOE excludes any behavior on study-abroad programs from Title IX jurisdiction, even when the allegations involved students from the same university.
Just a few short weeks ago, college students were in the midst of their spring semester, contemplating spring break, finals, graduation, and athletic conferences. At the same time, members of higher education institutions anticipated the release of the Department of Education’s (DOE) final version of the proposed Title IX regulations. As of the beginning of the year, the DOE sent a finalized version of the regulations to the White House Office of Management and Budget (OMB), indicating that the regulations were in the “Final Rule Stage.” The Office of Information and Regulatory Affairs (OIRA) website indicates that the meetings on the proposed regulations concluded as of March 27, 2020.
This week, the United States Department of Education (DOE) announced a new Title IX enforcement initiative led by the DOE’s Office for Civil Rights (OCR) to combat the rise of sexual harassment, sexual assault, sexual misconduct, and sexual violence incidents occurring in elementary and secondary (K-12) public schools involving both student-on-student and staff-on-student incidents.
OCR is an enforcement arm of the United States Department of Education which enforces a number of civil rights laws in programs or activities that receive federal financial assistance. “Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C §§ 1681 et seq., prohibits discrimination on the basis of sex in education programs and activities operated by recipients of federal financial assistance. Title IX’s prohibition of discrimination includes sexual harassment and assault, which interferes with students’ rights to receive an education free from discrimination on the basis of sex.” 
In November 2018, the U.S. Department of Education (DOE) proposed new Title IX regulations concerning sexual harassment, including sexual assault, and received over 100,000 comments during the public comment period. As of today, the regulations have not been finalized. However, four congresspersons recently introduced legislation in the House of Representatives that would prohibit implementation of the proposed Title IX regulations.
The bill, H.R. 5388, introduced by Representative Elissa Slotkin and co-sponsored by Representatives Ayanna Pressley, Jackie Speier, and Annie Kuster, provides that “the Secretary of Education may not issue or enforce certain rules that weaken the enforcement of the prohibition of sex discrimination applicable under Title IX.” Specifically, the bill states that the Secretary of Education may not (1) take any action to implement, enforce, and/or give effect to the proposed regulations, or (2) propose or issue any rule or guidance that is substantially the same as the proposed regulations. Rep. Slotkin’s press release states that the new regulations “could have a chilling effect on students’ willingness to come forward with allegations of sexual misconduct and would be a detriment to survivors and to students in general and the academic institutions they attend.”
Fall is here and in full swing! Many of us thought that as we sipped hot apple cider and watched the leaves on the trees change color, we would also be mulling over the new regulations issued by the U.S. Department of Education. Betsy DeVos’ timetable is clearly not ours. While we wait for the regulations to be issued, let us look at our current Title IX investigations and what we can do to improve them. Here they are—the top ten pitfalls of Title IX investigations and how to avoid them: