The new regulations, which apply to all federally funded institutions including public school districts, colleges, and universities in California, require compliance by August 14, 2020.
The new regulations have the force of law and require significant changes to enforcement of Title IX by educational institutions.
We strongly advise that existing institutional policies related to Title IX be carefully reviewed to ensure full compliance by August 14. Most institutions will need policy revisions to accommodate various aspects of the new regulations, including the substantially updated hearing procedures.
We will be working to provide detailed and specific legal updates regarding these new regulations in the coming days.
According to the Department of Education, the key provisions of the new regulations include:
– Defining sexual harassment to include sexual assault, dating violence, domestic violence, and stalking, as unlawful discrimination on the basis of sex;
– Providing a consistent, legally sound framework on which survivors, the accused, and schools can rely;
– Requiring schools to offer clear, accessible options for any person to report sexual harassment;
– Empowering survivors to make decisions about how a school responds to incidents of sexual harassment;
– Requiring schools to offer survivors supportive measures, such as class or dorm reassignments or no-contact orders;
– Protecting K-12 students by requiring elementary and secondary schools to respond promptly when any school employee has notice of sexual harassment;
– Holding colleges responsible for off-campus sexual harassment at houses owned or under the control of school-sanctioned fraternities and sororities;
– Restoring fairness on college and university campuses by upholding all students' right to written notice of allegations, the right to an advisor, and the right to submit, cross-examine, and challenge evidence at a live hearing;
– Shielding survivors from having to come face-to-face with the accused during a hearing and from answering questions posed personally by the accused;
– Requiring schools to select one of two standards of evidence, the preponderance of the evidence standard or the clear and convincing evidence standard – and to apply the selected standard evenly to proceedings for all students and employees, including faculty;
– Providing “rape shield” protections and ensures survivors are not required to divulge any medical, psychological, or similar privileged records;
– Requiring schools to offer an equal right of appeal for both parties to a Title IX proceeding;
– Giving schools flexibility to use technology to conduct Title IX investigations and hearings remotely; and
– Protecting students and faculty by prohibiting schools from using Title IX in a manner that deprives students and faculty of rights guaranteed by the First Amendment.
Parker & Covert has extensive experience in handling Title IX complaints and drafting Title IX policies. Should you have any questions or need assistance in reviewing your District's Title IX policies, please contact us by e-mail or by telephone at (714) 573-0900 (Southern California office) or (916) 245-8677 (Northern California office).