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.” [1]
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

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:

Continue Reading 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

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

As we suggested in our February 2017 blog post, the future of Title IX application in our institutions is in flux. The Department of Education Office for Civil Rights rescinded the Obama era 2011 Dear Colleague Letter and 2014 Guidance on September 22, 2017. These guidelines placed certain procedural requirements on investigations of sexual misconduct allegations conducted by postsecondary institutions receiving federal funding. The Department of Education (“DOE”) stated that the policy requirements in these documents led to procedures that did not adequately protect the rights of the students accused of sexual misconduct. Specifically, the DOE criticized these guidelines for: requiring a preponderance of the evidence standard, requiring Universities with appeal processes to allow accusers to appeal “not guilty” outcomes, discouraging Universities from allowing cross-examinations by the parties, prohibiting the Universities from relying on law enforcement investigation reports, and requiring Universities to employ an expedited timeline for investigations. Therefore, the DOE stated it is currently in the process of developing new regulations that it will issue for public comment by all stakeholders. Until more formal regulations are adopted, schools are to follow the Q&A issued on September 22, 2017. 
Continue Reading DOE Announces Intention to Revise Title IX Campus Sexual Misconduct Investigation Requirements

This blog post was updated on March 17, 2017 due to the news that SCOTUS will no longer hear Gavin Grimm’s bathroom case.

The evolving field of enforcement of Title IX matters took another turn last week.

On February 22, 2017, the Department of Education and Department of Justice, under the direction of the new Administration, together issued a “Dear Colleague Letter” (“Letter”) expressly rescinding certain guidance letters from the previous administration, which provided that Title IX’s prohibition of discrimination based on “sex” protects transgender students from discrimination based on their gender identity.


Continue Reading The Future of Title IX Enforcement and Gender Identity