What You Should Know About the Proposed Title IX Regulations

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By and large, independent schools are not subject to Title IX and its guidance regarding sexual misconduct complaints.  However, often our parents have Title IX-like expectations.  Under the Obama administration, more aggressive enforcement was the norm and the parent expectation.  Education Secretary Betsy DeVos rescinded those guidelines in 2017.  On Friday, November 16, 2018, the Dept. of Education released its new proposed regulations.  The public has 60 days to weigh in on the proposed regulations.

Here is a brief review of the major changes we have noted.

Guaranteed right to cross examination. The Obama-era guidance had discouraged cross examination due to concerns over retraumatization.  While independent schools typically do not have the level of “due process” involved at the university level, families have become more vocal about making sure their accused student has being given a fair chance to defend against the allegations.

A more restrictive definition of “sexual harassment”.  The guidance formerly defined harassment as “unwelcome conduct of a sexual nature.”  The new proposed rules require more, defining sexual harassment 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.”  This much higher standard is similar to the concept of constructive discharge in employment.

Higher standard of proof.  Universities had previously used a “more likely than not” standard of proof of allegations, the preponderance of the evidence.  This has sometimes been described as “51 percent chance” that the conduct occurred as complained of.  Universities could now choose to use a “clear and convincing evidence” standard of proof.

It is important for us to keep in mind that our schools continue to have statutory and civil liability duties unaffected by changes in Title IX rules:

  • Mandatory reporting
  • Duty of Care
  • Duty to Protect
  • Duty to Supervise
  • Licensing duties

What we can learn from these rules is that there is a very strong perceived need to protect the accused as well as the accuser, and both sides may be represented by counsel.  Schools should be consulting counsel whenever allegations of sexual misconduct arise.

About the Authors

Karen Kalzer

Ms. Kalzer practices employment and education law with an emphasis on defending complex litigation for communities of faith, non-profits, schools and private employers.

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Onik'a Gilliam-Cathcart

Ms. Gilliam-Cathcart’s practice primarily focuses on conducting investigations concerning claims of discrimination and retaliation, and counseling public and private organizations on a wide range of civil matters with an emphasis on employment-based claims. She also regularly trains and presents to employers on civil rights compliance and employment best practices.

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