Education Alert: Amendments to Title IX regulations officially proposed by Department of Education

by Greg Vanden-Eykel

Education Secretary Betsy DeVos has officially released proposed amendments to the Title IX regulations. Title IX prohibits discrimination based on sex at any school that receives funding from the Department of Education.

In 2017, DeVos rescinded guidance put forward by the Obama administration’s 2011 Dear Colleague letter and promised that formal rules would follow. Many of DeVos’ proposed changes were then leaked by the New York Times in August, after they received an unofficial draft of the proposed amendments.

The long-awaited revisions have not yet been published in the Federal Register, but, once published, will take effect after a 60-day public comment period, a process which could result in additional changes.

Significant changes proposed by the Title IX amendments

  • A new definition of sexual harassment. Sexual harassment would be actionable under three circumstances. Most notably, sexual harassment would be more narrowly defined as “…unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity…”
  • Actual knowledge. Schools must now commence a Title IX investigation only when they have “actual knowledge” of alleged sexual harassment, and “actual knowledge” arises when an “official with authority to take corrective action” provides notice of the alleged sexual harassment.
  • Accused guaranteed the right to cross-examine the accuser. Direct cross-examination of the accuser – previously discouraged in order to prevent potential re-traumatization – would now be allowed if conducted by a lawyer or other adviser in a live hearing with both parties in-person or available by technology.
  • Limited scope of investigation. A school’s responsibility to investigate alleged incidents would be limited to formal complaints of sexual misconduct that take place on-campus, or within an educational program or activity.
  • An option to choose standard of proof. Schools could choose the current “preponderance of the evidence” standard, also considered a lower standard, or the higher “clear and convincing evidence” standard when deciding if alleged incidence of sexual misconduct occurred. Notably, “preponderance of the evidence” may be used only if schools use this standard for other conduct code violations, not involving sexual harassment, but carrying the same maximum disciplinary
  • Mediation or informal resolution. Provided that both the accuser and the accused voluntarily agree, schools may opt for utilizing mediation or other informal resolution options in place of a formal investigation and adjudication process in response to a formal complaint of alleged sexual misconduct.
  • If schools will allow appeals of Title IX decisions, they must now allow both parties to appeal, and both parties must receive the same appellate rights and procedures.

For more information

We will release a podcast discussing the new rules in greater detail in the coming weeks. In the meantime, if you have any questions about the impact of the proposed rules on your organization, please contact Greg Vanden-Eykel at gvandeneykel@bglaw.com or at 617-654-8200.

Barton Gilman provides the full scope of legal services to education clients – including traditional and non-traditional public schools, charter schools, charter management organizations, private schools, education advocacy organizations and other education-related organizations – throughout Massachusetts, Rhode Island and New York. For more information, please click here.