New Federal Rules Proposed About Sexual Harassment on Campus

On Thursday, the U.S. Department of Education proposed new rules on the handling of sexual-harassment complaints on school campuses that receive federal funding.

The regulations aim to address when a school violates Title IX, a federal law against sex discrimination, based on the way it responds (or doesn’t respond) to such complaints. There is a 60-day period for public comment that closes January 28, 2019.

The following summary applies to colleges and universities only, because the rules for elementary and secondary schools differ slightly. For further reading, here’s the Department’s one-page summary, a longer six-page summary, and the full text of the regulations.

What counts as sexual harassment? Three things. It’s either a sexual assault; a sexual quid pro quo by a school employee; or any other unwelcome conduct on the basis of sex that’s so severe, pervasive, or objectively offensive that it effectively denies you equal access to the school’s program or activity.

When must a school respond to a claim of sexual harassment in its programs or activities? It must respond only if it has actual knowledge of the claim, and it has actual knowledge only if the claim reaches its Title IX coordinator or other designated person who is actually empowered to take corrective action on its behalf.

How must a school respond if it has actual knowledge of a claim? It depends on whether there’s a formal complaint or not, but either way, a school must respond in a way that’s not deliberately indifferent or clearly unreasonable under the circumstances.

• When there’s a formal complaint, the school will meet this standard by providing for an administrative hearing and process that complies with the regulations. (More on that below.) The school itself must file a formal complaint if it has actual knowledge of multiple reports by different people about the same person.
• If there’s no formal complaint, the school may respond less formally but still must respond meaningfully to restore the aggrieved person’s access to the program or activity. To do that, it may offer any number of supportive measures that are non-disciplinary, non-punitive, and available as appropriate to both sides without charge. These include counseling services, changing class schedules, restricting contact between the parties, extending deadlines for coursework, and providing campus escorts or security among other things.
• Whenever there’s an immediate threat to health or safety, the school may remove the accused without process on an emergency basis.

What are the required procedures after a formal complaint? A school’s investigation must be fair to both the accuser and the accused. The process must rely on facts and evidence, and it can’t favor one side or the other. Once the school investigates the matter, it must share all evidence with both sides, and it must hold a live hearing where both sides may examine and cross-examine all witnesses.

• The hearing officer or decision-maker can’t be the same person as the Title IX coordinator or an investigator, and all cross-examination must be done by an attorney or other adviser. If you don’t have one, the school must provide one to do it for you. The accused may not cross-examine the accuser about sexual history or behavior unless it’s to prove that someone else was responsible or to prove consent based on specific incidents between them. If you’re not comfortable being in the same room as the other person, you can request to conduct the proceedings by video-conference from separate rooms. But all witnesses must submit to cross-examination or the school must disregard their testimony.
• The hearing officer will decide the case based on the preponderance of the evidence or on a standard that requires clear and convincing proof. If a school applies the lower, preponderance standard, it must use that standard for other conduct violations besides sexual harassment that carry the same penalty. It must also use that standard for complaints against its employees, like faculty, and not just for those against students.
• Whatever the standard, the school must issue written findings and conclusions and keep records from the case for at least three years.