On May 6, 2020, the United States Department of Education issued amendments to Title IX of the Education Amendments of 1972 (the “2020 Amendments”).  Title IX and the 2020 Amendments apply to all institutions that receive federal financial assistance from the Department of Education, including state and local educational agencies, and provides that such covered institutions may not discriminate on the basis of sex in any educational program or activity; this includes the prohibition of sexual harassment.  In advocating for the 2020 Amendments’ passage, Betsy DeVos, the United States Secretary of Education, stated that the goal of the 2020 Amendments is to provide a greater opportunity for due process for both the victims of sexual harassment as well as those who are accused of it.  The 2020 Amendments went into effect August 14, 2020, and, accordingly, covered institutions must come into compliance immediately.  This article seeks to touch on some of the major changes that covered institutions will need to comply with.

The 2020 Amendments have expressly defined what constitutes “sexual harassment” within the purview of Title IX.  The 2020 Amendments define sexual harassment to include: sexual assault, dating violence, domestic violence, and stalking.  Possibly the most controversial element of the new regulations is the requirement that postsecondary institutions (but not elementary and secondary schools) hold live disciplinary hearings in sexual misconduct cases and allow cross-examination of witnesses.  Previous regulations discouraged the accused from personally cross-examining the accuser.  The Department of Education opined that the cross-examination element was a critical part of determining witness credibility, and thus was an indispensable part of resolving a Title IX complaint.

Another change comes with respect to the Title IX investigator at each covered institution  The 2020 Amendments prohibit postsecondary schools from utilizing a “single investigator,” meaning that the Title IX Coordinator and/or the investigator may not be the same individual who serves as the “decision maker” in any particular case.  Additionally, the decision maker cannot be an employee of the Title IX Coordinator; these rules seek to ensure the decision maker is a separate, neutral party unaffiliated with the Title IX’s Coordinator’s office or the individual investigating the complaint. The 2020 Amendments also implement a key principal of the American criminal justice system into the Title IX framework: any student or employee that is accused of misconduct under Title IX must be considered innocent until proven guilty through a formal hearing process.  What this means from a practical standpoint is that the school bears the burden of proof and that pre-hearing processes cannot place a heavier burden on the accused as compared to the victim.

The 2020 Amendments have also changed the burden of proof standard that must be satisfied in Title IX complaints. Previous regulations required all covered institutions use the “preponderance of evidence” standard of proof when resolving a Title IX complaint.  However, the 2020 Amendments allow covered institutions to choose between this standard and the “clear and convincing evidence” standard.  Under the preponderance of evidence standard, the burden of proof is met when the party with the burden convinces the fact finder that there is a greater than 50% chance that the claim is true.  The clear and convincing evidence standard is a higher burden to satisfy – the evidence must be highly and substantially more likely to be true than untrue, and the fact finder must be convinced that the contention is highly probable.  However, it is important for covered institutions to note that there is a caveat to this “choice” of evidentiary standards: covered institutions must apply the same standard of evidence for complaints against students as it does for complaints against faculty. This caveat is in place due to the Department of Education’s position that the standard of proof should not vary based on the status of the respondent (i.e. student or employee). Therefore, one standard must be chosen and applied uniformly.

The 2020 Amendments are extensive and will require covered institutions to revisit and likely revise their existing Title IX practices.  Individuals or institutions with questions on the foregoing or any part of Title IX are encouraged to contact a member of the Koley Jessen Employment, Labor, and Benefits Department.

^{Special thanks to our Summer Associate, Baylie Moravec for her help in writing this article.}

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