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