On May 6, 2020, the U.S. Department of Education (DOE) released its long-awaited Final Rule under Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in education programs or activities receiving federal financial assistance. This Final Rule comes after the DOE originally released its proposed Title IX regulations almost 18 months ago, resulting in more than 100,000 public comments.
The regulations issued in the Final Rule come with an effective date of Aug. 14, 2020. While that provides educational institutions a fair amount of time to ensure compliance, the Final Rule itself is more than 2,000 pages, so there is quite a bit of information for institutions to consider over the next few months.
Along with the lengthy Final Rule, the DOE also issued several helpful summaries: a Title IX Final Rule Overview, a Summary of the Major Provisions of the Title IX Final Rule and a Summary of the Major Provisions of the Title IX Final Rule as Compared to the Proposed Regulations.
Some of the Final Rule’s major provisions address:
- When schools have actual notice of sexual harassment and clarification of when harassment occurs in a school’s “education program or activity.”
- An updated definition of sexual harassment and definitions of “formal complaint,” “complainant,” “respondent” and “supportive measures.”
- Notice of the school’s reporting procedures that must be provided to all applicants, students, employees, unions and certain parents.
- Details on a school’s mandatory response obligations, including offering supportive measures without regard to whether a formal complaint is filed, following a compliant grievance procedure before taking any disciplinary action, and not restricting First, Fifth and Fourteenth Amendment rights.
- Details on a school’s duty to investigate formal complaints and limitation on the use of medical or mental health treatment records.
- Details about new grievance procedure requirements, including “live” recorded or transcribed hearings, questioning and cross examination by advisors, and the duty to provide an advisor for any party.
- Other issues such as party notifications, appeal procedures, rape-shield protections, permissible standards for determining responsibility, confidentiality requirements, retaliation and many others.
Taft’s Higher Education practice will be issuing more information in the near future, but please contact any member of the group as you begin reviewing and considering how best to implement the many new requirements in the Title IX Final Rule.