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. Continue Reading State Attorneys General First to Formally Challenge New Title IX Regulations
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.
Other highlights of the new regulations are as follows:
Sexual Harassment Defined
Until now, there was no legally-binding definition of what constitutes sexual harassment in the Title IX context. The new regulations codify that sexual harassment includes sexual assault, dating violence, domestic violence, and stalking—and that all of these are prohibited under Title IX.
Formal Complaint Must be Filed to Initiate Investigation
While anyone can report sexual harassment, a formal complaint must now be filed before a school is obligated to conduct an investigation. Who files this formal complaint? The complainant (e.g., the alleged victim), the complainant’s parent or guardian, or the Title IX Coordinator for that college or university are the only people that can file a complaint. Continue Reading Yes, It’s True: Department of Education Issues Title IX Regulations During a Pandemic
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.
However, along with businesses across the world, college and university campuses in the United States were turned inside out by the arrival of the novel coronavirus, also known as COVID-19. In a matter of weeks, institutions of higher education transitioned from in-person instruction to remote instruction, and many students departed campus indefinitely. Graduations were postponed or converted into online ceremonies.
Given the unprecedented changes in institutions of higher education over the past few weeks, Pennsylvania Attorney General Josh Shapiro, joined by eighteen other attorneys general, submitted a letter to the DOE and the OMB requesting suspension of the rulemaking process for the proposed regulations while the nation’s education institutions respond to the national emergency caused by COVID-19, and until institutions resume their normal operations. Attorney General Shapiro cited the fact that more than 1,140 colleges and universities are temporarily closed, affecting more than 14.5 million students.
Attorney General Shapiro stated, “with school resources already stretched thin, now is not the time to require school administrators, faculty, and staff to review new, complex Title IX regulations, revise their schools’ policies in response, and communicate these changes to students and parents.” Attorney General Shapiro argued that finalizing the proposed regulations at this time would add significant confusion to ongoing Title IX investigations that have already been interrupted. Continue Reading Correspondence Encourages the DOE Not to Release New Title IX Regulations Amidst the COVID-19 Pandemic
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.”  Continue Reading New Title IX Enforcement Initiative to Address Sexual Misconduct in K-12 Public Schools
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.”
The bill has been assigned to the Committee on Education and Labor. However, there is no way to know whether the Committee will proceed to review the bill, and if so, when it would be reviewed and/or released. Therefore, it remains to be seen whether the bill will affect the imminent release of the proposed regulations.
While there is no actual date as to when the regulations will be finalized and released, there are indications that it may be in the next few months. In early November of 2019, the DOE sent a finalized version of the proposed regulations to the White House Office of Management and Budget (OMB), which reviews all regulations. Further, there are meetings scheduled in the OMB on the regulations throughout February of 2020, indicating that the regulations are in “Final Rule Stage.”
Here at Cohen Seglias, we continue to monitor the progress of the proposed regulations. In the meantime, educational institutions should prepare to review their policies in order to be compliant with the potential new regulations.
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:
Cohen Seglias Summer Associate Alexandra M. Aversa also contributed to this article.
On July 8, 2019, Pennsylvania Governor Tom Wolf signed two campus safety initiatives into law to combat sexual violence and increase campus safety at Pennsylvania colleges and universities. The two initiatives are a part of Act 16 of 2019 (HB 1615), an omnibus education bill that was signed into law on June 28, 2019.
Governor Wolf said that this new law was the first of its kind in the nation. Act 16 takes effect in June 2020 and has two main requirements. Continue Reading PA Colleges and Universities Must Implement Online Anonymous Reporting System and Adopt Victims Bills of Rights Policy under New Law
This article originally appeared in The Legal Intelligencer on January 9, 2019.
The Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL), 73 P.S. Section 201-1 et seq., and the Administrative Code of 1929, specifically 71 P.S. Section 307-3, vest the Pennsylvania Office of Attorney General (OAG) with the power to investigate “unfair methods of competition” and “unfair or deceptive acts or practices” by companies doing business in Pennsylvania. The statutory definition of these phrases is quite lengthy, consisting of 21 separate, prohibited acts ranging from deceptive advertising and pyramid schemes to unlawful telephone solicitations and excessive shipping delays. But this catch-all definition perhaps best sums up the essence of what conduct is prohibited under the UTPCPL: “Fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” Penalties for violating the UTPCPL include what you would expect—civil penalties and the payment of costs and restitution. But these penalties often pale in comparison to the Attorney General’s power to petition for injunctive relief and forfeiture of the right to do business in Pennsylvania if the investigation is mishandled. Continue Reading Tips for Representing Clients in OAG Consumer Protection Investigations
As expected, the U.S. Department of Education (DOE) recently released proposed Title IX regulations, specifically concerning sexual harassment, including sexual assault. This is significant because the DOE has never addressed these issues through regulation. In the past, guidance has only been available through informal resources, such as the 2011 Dear Colleague Letter and the 2014 Guidance/Q&A. As discussed in previous blog posts, these new regulations, if adopted, would constitute a substantial departure from prior guidance. Continue Reading Changes Ahead: Department of Education Proposes Revisions to Title IX Regulations
I’m a management-side employment lawyer. It’s my job to go to court and defend employers and executives accused of all different types of misconduct, including sexual harassment. Over the last 20 years, I have seen it all. Some of my cases involve relatively tame allegations, like telling dirty jokes around the watercooler. And I have also been involved with cases involving extremely serious accusations, including indecent exposure, unwanted touching, and sexual assault. I spent a fair amount of time watching the Kavanaugh hearings. Like everyone else I know, I have a strong opinion on whether or not the nomination should be approved, but I did not write this article to share my personal opinions. There are enough political commentators on cable news shows doing that already. From an employment litigation and human resources perspective, there are several important lessons to be learned. Continue Reading Lessons from the Kavanaugh Hearing