The Department of Education has recently released their long-awaited final rule regarding changes to regulations governing allegations of sexual misconduct in educational institutions under Title IX. Importantly, unlike some prior guidance, these regulations constitute legally-binding obligations, and K‑12 schools, colleges and universities receiving financial assistance from the federal government will be required to comply by August 14, 2020.
The rule clarifies a variety of standards and definitions and imposes certain procedural obligations on schools and post-secondary institutions in the event of allegations of sexual harassment. The rule’s requirements for any grievance process include: (1) providing the accused with a presumption of non-responsibility until the conclusion of the process; (2) describing the possible remedies or disciplinary sanctions that might be available if an accused is found responsible; and (3) stating whether the school will require that the allegations in a formal complaint meet a “more likely than not” preponderance standard or “clear and convincing evidence” standard.
For post-secondary institutions, the grievance process must also provide for a live hearing where “advisors” for each party will be entitled to ask the other party or witnesses relevant questions and follow-up questions (although the parties can request to be in separate rooms).
The unofficial version of the rule is available here and a fact sheet about the regulations is available here. If you have any questions regarding what this new rule might mean for your institution, please reach out to Warner’s Higher Education Industry Group or your Warner attorney.