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