TITLE IX:
50 YEARS IN THE CHANGING LANDSCAPE OF EDUCATION This year marks the 50th anniversary of Title IX of the Educational Amendments of 1972. Through case law and federal regulation, the nature of Title IX has expanded over these last fifty years, reshaping to fit the needs of the ever-changing landscape of education. Most significantly, Title IX has come to govern how recipients of federal funding respond to sexual misconduct in education. In 2020, the Trump-era Department of Education implemented one of the most significant changes through extensive federal regulation.1 This article explores the changes made to Title IX under these regulations as well as the response of the current administration and predictions for the future. The 2020 regulations redefined sexual harassment.2 This overarching definition of sexual harassment includes: quid pro quo committed by an employee of the recipient of federal funding; unwelcome conduct that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to an educational program or activity; domestic violence; dating violence; sexual assault; and stalking.3 Institutions may create their own definition of consent for the purposes of sexual assault.4 These definitions should be clearly detailed in institution policy. In addition to the new definition of sexual harassment, the regulations narrowed the scope of Title IX. In order to file a formal complaint under Title IX, a complainant must be participating in or attempting to participate in the recipient’s educational programs or activities, which are defined as situations under which the recipient exercises substantial control over the respondent and the context in which the alleged harassment occurs.5 These locations may differ from the institution’s Clery Act geography.6 Significantly, these regulations also do not cover instances of alleged sexual misconduct that occur outside the United States.7 Institutions which provide study-abroad or foreign exchange opportunities for their students should examine how they will address allegations of misconduct arising out of their international programs. Allegations which fall under this new definition and within the scope of Title IX must be adjudicated through a prescriptive process outlined in the regulations.8 This process includes many procedural details which are not enumerated here, including but not limited to the requirement of a formal complaint, notice requirements, and the opportunity for informal resolution in some circumstances.9 The
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opportunity for a live hearing constitutes one of the most impactful requirements.10 While many public institutions have required hearings since Doe v. Baum,11 many institutions face their first live hearings under these new regulations. These hearings must include the opportunity for parties to have an advisor question other parties and witnesses.12 Hearing officers must make their determinations starting with the presumption that the Respondent is not responsible for a violation.13 Institutions may choose whether the hearing officers will use the preponderance of the evidence or the clear and convincing standard when weighing the evidence.14 These decision-makers cannot be the Title IX Coordinator or whoever investigated the allegations.15 These roles, and the role of the appellate officer(s), must be filled by different people, and parties still must be given the right to identify a conflict of interest or bias from any of the people in these roles.16 As a result, many institutions find themselves expanding their Title IX teams with paid employees or volunteers, who must receive specific training detailed under the regulations.17 Institutions should be prepared to find adequate training and to post the training materials on their websites for review.18 Institutions must also be prepared to find a way to share evidence directly related to the allegations with the parties.19 For many institutions, this may mean finding new secure forms of data sharing. For many institutions, these regulations have resulted in new policies which are much narrower than their previous sexual harassment and misconduct provisions. While the scope of Title IX and the definition of sexual harassment are narrowed under the current regulations, institutions still have obligations under such laws as the Clery Act and the Violence Against Women Act. Institutions should be prepared to address alleged violations beyond those defined in the regulations in accordance with their obligations under these laws as well. The regulations have also changed the role of Title IX in K-12 institutions. The 2020 regulations require K-12 schools, like their higher ed counterparts, to designate a Title IX Coordinator.20 In higher education the institution is considered to have actual knowledge of sexual harassment when the Title IX Coordinator, or other designated employees with authority, has knowledge of harassment; at the K-12 level, the school district is put on notice when any employee has
DICTA
March 2022
