Trial News

For nearly two decades, the U.S. Department of Education—under both Democrat and Republican administrations—required schools to address sexual harassment.¹ But in May, as schools and students scrambled to grapple with COVID-19, the department added more chaos to the mix, publishing new Title IX regulations concerning sexual harassment. These are, to put it mildly, a step back for sexual harassment plaintiffs. The changes likely will discourage victims from reporting, lead to further trauma if they do come forward, and reduce opportunities to hold schools accountable when they violate Title IX rights.

The new rules went into effect Aug. 14, 2020. We hope these regulations are not long for this world; a court may enjoin the rules in response to one of the lawsuits filed by states and advocates²  or a new administration may reverse course. But in the meantime, we must be prepared to navigate this new and rocky terrain and understand how to advise clients and evaluate cases.

Key Rule Changes

Advocates are still trying to understand how the new requirements will affect students, but some of the biggest threats are clear.

Severe and pervasive. For nearly 20 years, the Department of Education defined sexual harassment as “unwelcome conduct of a sexual nature.”³  That language was pulled from even older guidance from the Equal Employment Opportunity Commission⁴  and from the U.S. Supreme Court’s landmark 1986 case, Meritor Savings Bank v. Vinson.⁵  Under that original standard, the more severe the harassment is, the less necessary it is to show repetition, and vice versa.

The new rules dramatically narrow what kinds of conduct schools must address under Title IX. Sexual harassment is defined as “conduct on the basis of sex” that is “[u]nwelcome” and “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”⁶  In other words, schools don’t need to address harassment that is severe but not (yet) pervasive or pervasive but not (yet) severe. Tacked onto this definition are a handful of other specific kinds of misconduct that might not fit that definition but still “count”: quid pro quo harassment, sexual assault, dating violence, domestic violence, and stalking.⁷

Although additional, specific forms of violence not in the original proposed rule eventually made it into the new rule, the covered conduct is still limited and will leave many students without remedies. And while schools may prohibit a broader range of sexual harms as part of their codes of conduct, the department won’t require them to do so.

Location. Previously, the department recognized—as have many courts—that sexual harassment occurring off campus can create a hostile environment on campus.⁸  For example, a student raped at a classmate’s house may be afraid to attend the math class she shares with her rapist. In a sharp departure, the new rule permits schools to ignore all complaints of off-campus sexual harassment that happens outside of a school-sponsored program.⁹  Only about 8% of sexual assaults that involve middle school, high school, and college students occur on school property.¹⁰  Too many victims now will be forced to endure a hostile environment due to geographic limits that do not reflect the realities of harassment: Just because violence occurs away from school does not mean its effects stop at the campus’s edge. Schools are permitted to address off-campus sexual harassment, but they are not required to do so.

Actual knowledge only. The department has long held schools responsible for failing to address sexual harassment they either knew or should have known about.¹¹  However, under the new rules, institutions of higher education are responsible for addressing sexual harassment only when one of a small subset of senior school employees—Title IX coordinators and others “or any official of the recipient who has the authority to institute corrective measures”—actually knew about the harassment.¹²  Not on that list? Coaches and professors, who are often the first adults in whom students confide.

Deliberate indifference. Under the former Title IX rules, the department had a sensible enforcement rule: A school complies with Title IX if its response to a report of sexual harassment is reasonable. If it isn’t, the school is liable.¹³  Under the new rules, the administrative enforcement standard will now mirror the private damages liability standard: Survivors must demonstrate the school was deliberately indifferent to their complaint.¹⁴

In response to criticism of the proposed rule, the department modified the standard a little: To avoid a deliberate indifference finding, schools must take some specific measures, including offering complainants services and permitting them to pursue a disciplinary hearing.¹⁵  But that’s not enough to protect students. Wherever schools have discretion—for example, in deciding which support services to offer—those choices will be judged by the deliberate indifference standard, giving schools a wide berth in their decision-making.

New procedural requirements. Courts and the department previously gave schools discretion to tailor their disciplinary proceedings as long as they comported with due process requirements.¹⁶  The new rules take a very different approach: Every institution of higher education must use the same model for sexual harassment complaints.¹⁷  That model includes a live hearing with cross-examination, which will be traumatizing for many survivors.¹⁸  Respondents may refuse to be cross-examined without giving up their chance to question the complainant.

There is plenty of room for good faith debate about what fair disciplinary procedures should look like. But while students facing punishment need fair procedures, the department’s procedural rules are more trial-like and respondent-protective than courts require of student discipline. The vast majority of appellate courts have held that schools may use truth-seeking models other than cross-examination, such as allowing students to pose questions to each other through an intermediary administrator.¹⁹

The rules also require schools to ignore evidence that would be admissible even in a criminal or civil trial.²⁰  For example, if a respondent texts a friend admitting to the charge and then refuses to be cross-examined, the school cannot consider the text. But it is for good reasons that courts don’t exclude as hearsay previous admissions by parties.

Standard of evidence. The department long required schools to use the preponderance of the evidence standard in assessing complaints of sexual and racial harassment.²¹  But under the new rules, schools are allowed, in theory, to use either the preponderance of the evidence or clear and convincing evidence standards.²²  In reality, however, many will have to use the latter, higher standard. That’s because the rules require schools to use the same standard for allegations against students and staff²³ —and many collective bargaining agreements require schools to find clear and convincing evidence before firing an employee,²⁴  regardless of the type of misconduct. In that case, a school will have to use that higher standard for sexual harassment complaints against students as well.

The Impact of the New Rules

The overall effect of the new Title IX rules is to single out sexual harassment—and for the worse. The new definition of sexual harassment is far narrower than the definitions the department uses for other forms of harassment, including harassment based on race and disability.²⁵  The new rules also likely place stricter geographic limits on Title IX’s reach than the department uses for other forms of discrimination.²⁶  Students who are sexually harassed will face uniquely onerous procedural burdens. Some schools will be required to use a higher standard of evidence for sexual harassment claims than for other forms of misconduct.²⁷  And regardless of whether cross-examination is good policy, there is no reason why schools should be required to use it for sexual harassment allegations alone. Reporting rates will likely drop significantly because of the new rules’ traumatic procedural requirements. Some schools will dismiss more complaints out of hand, and schools are less likely to be held accountable for mistreating survivors.

Practice Tips

Attorneys and advocates representing students who have faced sexual harassment must ensure schools treat survivors as well as they can within those constraints. In campus proceedings, make sure your clients have officially reported to the “right” person to establish actual knowledge. For higher-ed students, a report to the Title IX coordinator or a dean should suffice; for K-12 students, a report to any school employee is sufficient under the regulations.²⁸  (Note, though, that only reports to high-level officials will constitute “actual knowledge” in court.)²⁹  You may also want to consider whether an “informal” process that provides remedial measures but no discipline will best serve a client’s needs. A student terrified by the thought of being cross-examined may prefer to seek accommodations such as dorm and schedule changes but not file a formal complaint.

Consider whether protections may be available under other civil rights laws. For example, if your client requires accommodations for post-traumatic stress disorder, anxiety, or similar trauma-related diagnoses to participate in the hearing or to learn, disability law may be a better source for remedial measures than Title IX. When the conduct in question includes harassment based on more than one protected characteristic, a school can and should address the conduct under the framework established by the stronger civil rights law. So if a student is subjected to harassment that is both racist and sexual, urge the school to handle the complaint as a race discrimination case using Title VII’s more student-friendly standards.

When schools violate the law, survivors will still have options to hold schools accountable through means other than complaints to the Department of Education—private litigation against schools and administrative charges filed with state and local civil rights agencies are still available. Some Title IX suits, though, may turn into challenges to the regulations themselves. Defendants may argue courts should defer to the regulations as the department’s interpretation of the statute.

And watch out for collateral estoppel arguments. As sexual harassment disciplinary hearings become more trial-like, some schools are arguing that the disciplinary process resolved the question of whether harassment occurred—an element of any Title IX claim. But the school is not a party to its own internal proceeding, and disciplinary hearings don’t provide a chance to present evidence akin to a lawsuit with discovery.

Survivors deserve better than the Department of Education has delivered, and for now, it is our job as lawyers to protect them as best we can under these new rules—and to fight for better ones.

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Adele Kimmel is the Director of the Students’ Civil Rights Project at Public Justice in Washington, D.C., and can be reached at akimmel@publicjustice.net. Alexandra Brodsky is the Kazan Budd Staff Attorney at Public Justice in Brooklyn, N.Y., and can be reached at abrodsky@publicjustice.net.

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Notes

1. Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30,026 (May 19, 2020).
2. See Complaint, Victim Rights Law Center v. DeVos, (D. Mass. June 10, 2020) (No. 1:20-cv-11104); Complaint, Pennsylvania v. DeVos, (D.D.C. June 4, 2020) (No. 1:20-cv-01468); Complaint, New York v. U.S. Dep’t of Educ., (S.D.N.Y. June 4, 2020) (No. 1:20-cv-4260); Complaint, Know Your IX v. DeVos, (D. Md. May 4, 2020) (No. 1:20-cv-01224).
3. Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (Rescinded) 2, U.S. Dep’t of Educ., Office for Civ. Rights, Jan. 2001, (hereinafter “Revised Sexual Harassment Guidance”), https://tinyurl.com/yaeajxkz.
4. 29 C.F.R. §1604.11(a) (Westlaw through Sept. 24, 2020).
5. 477 U.S. 57, 68 (1986).
6. 34 C.F.R. §106.30(a) (Westlaw through Sept. 24, 2020).
7. Id.
8. See, e.g., Doe 1 v. Manhattan Beach Unified Sch. Dist., No. 19-CV-6962 DDP (RAOx), 2020 WL 2556356, at *5 (C.D. Cal. May 19, 2020); Kinsman v. Fla. State Univ. Bd. of Trustees, No. 4:15CV235-MW/CAS, 2015 WL 11110848, at *4 (N.D. Fla. Aug. 12, 2015); Roe ex rel. Callahan v. Gustine Unified Sch. Dist., 678 F. Supp. 2d 1008, 1028-29 (E.D. Cal. 2009); Doe ex rel. Doe v. Coventry Bd. of Educ., 630 F. Supp. 2d 226, 233 (D. Conn. 2009); Kelly v. Yale Univ., No. CIV.A. 3:01-CV-1591, 2003 WL 1563424, at *4 (D. Conn. Mar. 26, 2003); 29-30, U.S. Dep’t of Educ., Office for Civ. Rights, Apr. 29, 2014, https://tinyurl.com/yycyg3mz; Russlynn Ali, Ass’t Sec’y for Civil Rights, Dear Colleague Letter on Sexual Violence (Rescinded) 4 , U.S. Dep’t of Educ., Apr. 4, 2011, https://tinyurl.com/ydg4659z.
9. 34 C.F.R. §106.44(a) (Westlaw through Sept. 24, 2020).
10. Scope of the Problem: Statistics, Rape, Abuse & Incest Nat’l Network (RAINN), https://www.rainn.org/statistics/scope-problem.
11. E.g., Revised Sexual Harassment Guidance, supra note 3, at 13.
12. 34 C.F.R. §§106.30(a), 106.44(a).
13. E.g., Revised Sexual Harassment Guidance, supra note 3, at 16-17.
14. 34 C.F.R. §106.44(a).
15. Id. at §§106.44(a), (b).
16. See, e.g., Goss v. Lopez, 419 U.S. 565, 588-89 (1975); Revised Sexual Harassment Guidance, supra note 3, at 19-22. 
17. 34 C.F.R. §106.45(b) (Westlaw through Sept. 24, 2020).
18. Id. at §106.45(b)(6)(i).
19. E.g., Walsh v. Hodge, No. 19-10785, 2020 WL 5525397, at *7 (5th Cir. Sept. 15, 2020); Doe v. Univ. of Arkansas - Fayetteville, No. 19-1842, 2020 WL 5268514, at *7 (8th Cir. Sept. 4, 2020); Doe v. Colgate Univ., 760 F. App’x 22, 33 (2d Cir. 2019); Haidak v. Univ. of Massachusetts, 933 F.3d 56, 68-69 (1st Cir. 2019); Doe v. Westmont Coll., 34 Cal. App. 5th 622, 635 (Cal. Ct. App. 2019); but see Doe v. Baum, 903 F.3d 575, 589 (6th Cir. 2018).
20. 34 C.F.R. §106.45(b)(6)(i).
21. The department published its position on the preponderance of evidence standard in a 2011 Dear Colleague Letter. By that time, however, most schools were already applying that standard. See Jake New, Burden of Proof in the Balance, Inside Higher Ed, Dec. 16, 2016, https://tinyurl.com/y9fc3foq.
22. 34 C.F.R. §106.45(b)(1)(vii).
23. Id.
24. Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. at 30,376; Nat’l Women’s Law Ctr., DeVos’s New Title IX Sexual Harassment Rule, Explained 5 May 2020), https://tinyurl.com/y72426ro.
25. See, e.g., Tenn. State Univ. Resolution Letter from Andrea de Vries, Compliance Team Leader, Office of Civ. Rights, U.S. Dep’t of Educ., to Dr. Glenda Baskin Glover, President, Tenn. State Univ., OCR Case No. 04-15-2347, 3-4 (Apr. 2, 2018), https://tinyurl.com/y9gy6uoz; Barbour Cty. Sch. Resolution Letter from Melissa M. Corbin, Team Leader, Office of Civ. Rights, U.S. Dep’t of Educ., to Jeffrey P. Woofter, Superintendent, Barbour Cty. Sch., OCR Case No. 03-17-1170, 2 (Oct. 10, 2018), https://tinyurl.com/yapkkly7; Russlynn Ali, Ass’t Sec’y for Civ. Rights, Dear Colleague Letter on Bullying, U.S. Dep’t of Educ., 2 (Oct. 26, 2010), https://tinyurl.com/y7d8ubgb; Norma V. Cantu, Ass’t Sec’y for Civ. Rights, Dear Colleague Letter on Prohibited Disability Harassment, U.S. Dep’t of Educ., (July 25, 2000), https://tinyurl.com/yb5jobbn; Racial Incidents and Harassment Against Students at Educational Institutions, Investigative Guidance, 59 Fed. Reg. 11448, 11449 (Mar. 10, 1994), https://tinyurl.com/y86mu9tw.
26. See, e.g., 34 C.F.R. §§100.13(g), 104.3(k) (Westlaw through Sept. 24, 2020).
27. See, e.g., Resolution Agreement, Indep. Sch. Dist. No. 1 of Woods City, Oklahoma , OCR Case No. 07-15-1154, 9 (Sept. 28, 2017) (requiring school use preponderance standard for disability-based harassment), https://tinyurl.com/yak27ens; Resolution Agreement, BASIS Scottsdale, OCR Case No. 08-16-1676, 2 (Mar. 20, 2017) (requiring school use preponderance standard for racial harassment), https://tinyurl.com/y7kkzr66; Resolution Agreement, Wallingford Bd. of Educ., OCR Case No. 01-13-1207, 1 (Dec. 23, 2013) (same), https://tinyurl.com/y944pcjv.
28. 34 C.F.R. §§106.30(a), 106.44(a).
29. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998).