1) THREAD: It will obviously take time to go through the 2000+ pages of new #TitleIX regs that were just released. But as I start going through, some initial thoughts:
2) Grievance processes apply "only to sex discrimination occurring against a person in the United States." How will this section impact cases where an assault allegation arises out of a study abroad program, but the two students then return to the same U.S. campus?
3) Formal complaints can only be made by people participating in or attempting to participate in the education program of the institution where the complaint is filed.
4) Definition of sexual harassment: (1) quid pro quo harassment; (2) unwelcome conduct that a reasonable person would find so severe, pervasive, AND objectively offensive that it denies the person equal access to a program or activity; or
5) (3) one of a list of crimes - sexual assault, stalking, dating violence, domestic violence.
6) Supportive measures are to be available to either a complainant or respondent
7) Institutions only have to respond to sexual harassment when they have actual knowledge of the harassment.
8) Emergency removals: schools can remove a respondent if they do an individualized safety and risk analysis and determine there is immediate threat to physical health or safety of someone else, and provide an opportunity for the respondent to challenge the removal immediately.
9) Title IX coordinators and investigators cannot have a bias for or against complainants or respondents generally. This is big. Many Title IX claims have failed in court because courts decided that bias for/against complainants/respondents wasn't sex discrimination.
10) Grievance processes must include presumption that respondent is not responsible.
11) Standard of evidence can be preponderance or clear and convincing, and has to be the same standard for claims against students as for claims against employees (this may require some schools to use clear & convincing if that is what is required by employees' CBAs.)
12) Notice of allegations must include identities of parties involved (if known), the conduct that is alleged, and the date and location of the incident (if known).
13) If during an investigation the school decides to investigate additional allegations, it must provide a new notice.
14) Schools can dismiss formal complaints or allegations if the complainant asks to withdraw, if the respondent is no longer a student or employee at the school, or if the school cannot gather sufficient evidence to reach a determination.
15) Parties must have an equal opportunity to present witnesses including expert witnesses, as well as other evidence.
16) Schools cannot restrict the parties from discussing the allegations -- this is a significant change from the way many schools have gag orders on participants , which can interfere with students' ability to gather evidence.
17) Both parties have the right to inspect and review any evidence obtained during the investigation that directly relates to the allegations raised, including evidence that the school does not intend to rely on in reaching its decision.
18) Before completing the investigation report the school must send each party and the party's advisor the evidence, and parties must have at least 10 days to submit a written response.
19) (From a practice perspective, this is huge. Many schools currently require parties to review evidence in person. These reviews take hours, and then after that one review you no longer have access to the documents while writing a response.)
20) The school must provide the parties the investigative report at least 10 days before any hearing, and allow written responses to it.
21) For postsecondary schools there must be a live hearing.
22) At the hearing, each party's advisor can ask the other party and witnesses questions and follow-up questions, including questions that go to the witnesses' credibility.
23) Cross examination must be conducted "directly, orally, and in real time."
24) Only relevant questions allowed, before a witness answers the decision maker can decide if a question is relevant and exclude questions that are irrelevant.
25) If a party doesn't have an advisor, the school must provide one to the party for free for the purpose of the hearing.
26) If a party or witness does not submit to cross-examination the decision maker cannot rely on any statement by that party.
27) Institutions must create an audio or video recording of the hearing and make it available to the parties.
28) Elementary and secondary schools can, but do not have to, provide for a hearing.
29) Neither the investigator nor the Title IX coordinator can be the decision maker.
30) The written determination must include (among other information) findings of fact that support the determination, conclusions applying the school policies to the facts, and rationale for the results as to each allegation.
31) Schools must allow both parties to appeal decisions and dismissals of formal complaints or allegations based on: (a) procedural irregularity; (b) newly discovered evidence; (c) bias on the part of the Title IX coordinator, investigator, or decision maker.
32) There are provisions for informal resolution but schools cannot resolve allegations that an employee sexually harassed a student through an informal resolution.
33) Schools must keep records of sexual harassment investigations for seven years, including records used to train people involved in Title IX grievance processes. Schools must make the training materials publicly available.
34) The anti-retaliation provision specifically notes that exercising First Amendment rights does not constitute retaliation.
.@zalkindlaw and I will undoubtedly have many more thoughts on these new regs once we've properly digested them. Stay tuned to our blog for more: bostonlawyerblog.com.
