Although Title IX is commonly associated with sex-based discrimination in athletics, the law is much broader. Title IX of the Education Amendments of 1972 is a federal law that provides:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any educational program or activity receiving Federal financial assistance.
Title IX prohibits sex discrimination in all university/college programs and activities, including, but not limited to admissions, recruiting, financial aid, academic programs, student services, counseling and guidance, discipline, class assignment, grading, recreation, and employment.
Sexual harassment and sexual violence are forms of sex discrimination prohibited by Title IX. Title IX also prohibits retaliation against people for making or participating in complaints of sex discrimination.
On May 6th, 2020, after two years of debate, the U.S. Department of Education released its final regulations regarding sexual harassment and assault under Title IX of the Education Amendments of 1972. The final regulations elicited more than 100,000 comments by institutions of higher education and victims’ advocates and organizations.
The new regulations are comprised of more than 2,000 pages that address, amongst other issues, the definition of sexual harassment, due process requirements, and mandated elements of the written grievance procedure. The summary that follows provides a brief overview of the impact of the new Title IX regulations and the steps that will be necessary for the College to achieve compliance by the August 14th, 2020 implementation date.
The new regulations expand the requirements of schools to ensure that its community members are aware of the reporting process. In addition to notifying students and employees of the Title IX Coordinator’s contact information, schools are required under the new regulations to also advise applicants for admission and employment, as well as all unions, of the name, office address, email address, and telephone number of the designated Title IX Coordinator.
Postsecondary institutions, unlike K-12 schools, are permitted to determine their own mandatory reporting policy for employees. Notice to the Title IX Coordinator or to an official with authority to institute corrective measures is considered as constituting actual knowledge.
In accordance with the new regulations, schools must respond when sexual harassment occurs in the school’s education program or activity against a person in the United States. Education programs and activities include locations, events, or circumstances over which the school exercises substantial control over both the respondent and the context in which the sexual harassment occurred, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution (such as a fraternity or sorority house). This definition of education programs and activities no longer applies to study abroad programs. However, given that Title IX represents a floor and not a ceiling, schools may continue to address sexual harassment affecting its students or employees that falls outside Title IX’s jurisdiction, including providing supportive measures or pursuing discipline.
The new regulations impose a deliberate indifference standard (e.g. not clearly unreasonable in light of the circumstances) in order for a school to be found legally culpable for mishandling sexual misconduct allegations. Schools are required to respond promptly to misconduct prohibited under Title IX and have the following mandatory response obligations:
The new regulations adopt a narrower definition of sexual harassment in that it imposes a reasonable person standard and redefines sexual harassment as conduct on the basis of sex that meets one of more of the following descriptions:
The new Title IX regulations provides enhanced First Amendment protections. By adopting the Supreme Court’s definition in Davis of sexual harassment (requiring the conduct to be severe and pervasive and objectively offensive), the new regulations purport to allow schools the ability to balance Title IX enforcement with free speech concerns. Furthermore, the new regulations explicitly prohibit sex-based misconduct in a manner consistent with the First Amendment and provides that the exercise of rights protected under the First Amendment does not constitute retaliation.
A formal complaint is an official document alleging sexual harassment. It may be filed by the student, their parent or legal guardian, or the Title IX Coordinator. In cases where an alleged victim does not file a formal complaint, the Title IX Coordinator may initiate grievance procedures where discipline is appropriate. At the time of the filing of the complaint, the complainant must participate or be attempting to participate in an educational program or activity at the school. There is no time limit or statute of limitations on a complainant’s decision to file a formal complaint.
Schools’ written grievance procedures addressing sexual misconduct must abide by the new regulations and, at a minimum, satisfy the following requirements:
Moreover, the regulations refer to alleged victims as complainants and alleged perpetrators as respondents, irrespective of whether the formal grievance process has been initiated. The grievance process must be applied equally to both complainants and respondents.
Schools remain empowered to remove a respondent from the school’s education program on an emergency basis if the respondent poses an immediate threat to the health or safety of others. Likewise, the new regulations do not prevent a school from placing an employee who is the respondent in a Title IX complaint on administrative leave pending an investigation.
Supportive measures are free, individualized measures offered to either party to restore or preserve equal access to education, protect safety, or deter sexual harassment. Supportive measures are not intended to be punitive and should not unreasonably burden another person. A formal complaint need not be filed for a school to provide supportive measures, which may include extensions of deadlines, a community escort, counseling, modifications of work or class schedules, mutual restrictions on contact between individuals, or changes in housing location. The Title IX Coordinator is responsible for implementing supportive measures, which should be kept confidential and should be guided by the complainant’s wishes.
A school may not require the parties to participate in informal resolution and may not offer informal resolution unless a formal complaint is filed. Any party may opt to withdraw from the informal resolution process and resume the grievance process at any time. Informal resolutions are not appropriate in cases involving allegations that an employee sexually harassed a student.
The new regulations require schools to investigate the sexual harassment allegations of any formal complaint, which demands written notice to both parties upon receipt of the formal complaint. Additionally, written notice is required for investigative interviews, meetings, and hearings. Where a school elects to dismiss a complaint, written notice of the dismissal and the reasons for the dismissal must also be provided to the parties.
It is the responsibility of the school, and not the parties, to gather relevant information. The parties must be provided with an equal opportunity to present facts and witnesses.
Parties and their advisors are entitled to evidence directly related to the allegations, which must be provided to them in electronic or hard copy format with at least 10 days to review, inspect, and respond to the evidence.
Schools are permitted to consolidate formal complaints that arise from the same set of facts.
Over the course of an investigation, schools may not restrict the parties’ ability to discuss the allegations or gather evidence.
Live-hearings with cross-examination are mandated for post-secondary institutions under the new Title IX regulations. The examination process is to be conducted by hearing officers or advisors, not the parties.
In the case of cross-examination, a hearing officer must first decide if the questions are relevant. Questions about a person's sexual history are not considered relevant unless it could establish consent or prove that someone other than the accused student is responsible for the misconduct. If a party or witness does not submit to cross- examination at the live hearing, the decision-maker may not rely on any statement of that party or witness in reaching a determination regarding responsibility.
Virtual hearings are permitted, and are not considered a due process violation. Schools must create an audio or audiovisual recording, or transcript, of any live hearing and make it available to the parties for inspection and review.
If a party does not have an advisor, the school must provide an advisor of the school’s choice free of charge.
At the conclusion of the hearing, the decision-maker must issue a written determination that includes findings of fact, conclusions about whether the allegations occurred, the rationale for the findings, any sanctions imposed, and any remedies offered to the complainant. The written findings must be provided simultaneously to the parties and include information regarding the process for filing an appeal. The decision-maker cannot be the same person as the Title IX Coordinator and investigator.
The new regulations preserve the preponderance of the evidence standard by permitting schools to choose which evidentiary standard to employ. The standard selected by the school must be consistently applied to all sexual misconduct investigations regardless of whether the respondent is a student or an employee.
The new regulations stipulate the basis for an appeal. A school must offer both parties an appeal from a determination regarding responsibility, and from a school’s dismissal of a formal complaint or any allegations, on the following bases: 1) procedural irregularity that affected the outcome of the matter, 2) new evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made that could affect the outcome of the matter, and/or 3) the Title IX Coordinator, investigator, or decision-maker had a conflict of interest or bias that affected the outcome of the matter.
Title IX of the Education Amendments of 1972 (Title IX) is a federal civil rights law that prohibits discrimination on the basis of sex in federally funded educational programs and activities. Under Title IX, sexual assault and sexual harassment are forms of discrimination o n the basis of sex. The Department of Education's Office for Civil Rights, which enforces Title IX, has recently provided detailed guidance on how educational institutions like LWTech must investigate and respond to complaints of sexual assault and sexual harassment. Learn more in Question and Answers on Title IX and Sexual Violence from the Department of Education.
California Coalition Against Sexual Assault (CALCASA) study provides sexual assault statistics.
The college's responsibility is to respond promptly and effectively. If the college knows or reasonably should know about sexual harassment or sexual violence that creates a hostile environment, the college must take immediate action to eliminate the sexual harassment or sexual violence, prevent its recurrence, and address its effects. Even if a student's parent does not want to file a complaint or does not request that the college take any action on the student’s behalf, if a college knows or reasonably should know about possible sexual harassment or sexual violence, it must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation. A criminal investigation into allegations of sexual harassment or sexual violence does not relieve the college of its duty under Title IX to resolve complaints promptly and equitably.
The Title IX Coordinator’s responsibilities include:
Both a complainant and a respondent are given the opportunity to have support or advice through the process. During the investigation process, either the complainant or the respondent may have only one individual accompany them to any meetings and interviews – these individuals are collectively referred to as “Advisors” in this document. The individual may be a friend, victim advocate, lawyer, employee, family member, union representative, or other person chosen by the complainant or respondent. During the live hearing an advisor is mandatory. If an advisor is not chosen 10 days prior to the live hearing, an advisor will be appointed to the party.
*For trainings that are not hyperlinked, please contact Human Resources to learn more about the completed training by our Title IX Coordinators
Both a complainant and a respondent are given the opportunity to have support or advice through the process. During the investigation process, either the complainant or the respondent may have only one individual accompany them to any meetings and interviews – these individuals are collectively referred to as “Advisors” in this document. The individual may be a friend, victim advocate, lawyer, employee, family member, union representative, or other person chosen by the complainant or respondent. During the live hearing an advisor is mandatory. If an advisor is not chosen 10 days prior to the live hearing, an advisor will be appointed to the party.
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