Brookings Report: Analyzing the Department of Education’s final Title IX rules on sexual misconduct
On May 6, 2020, the Department of Education released its long-awaited Title IX rules on sexual harassment. This was the culmination of a process that began nearly three years ago. In 2017, the department withdrew the Obama administration’s guidance documents on the subject; a year later it issued a lengthy notice of proposed rulemaking under the Administrative Procedure Act (APA). This was the first full rulemaking on a major Title IX issue since 1975, and the only one ever dedicated to sexual harassment. The department received over 124,000 comments on its proposal and held scores of meetings with interested parties. Its detailed explanation of the final rule ran to more than 2,000 pages.
The regulations were immediately condemned by a number of women’s advocacy groups and by leading Democrats, including House Speaker Nancy Pelosi and former Vice President Joe Biden. The rules have already been challenged in court, and Democrats in Congress will probably try to use the Congressional Review Act to overturn them. But neither effort is likely to prevent the rules from going into effect as scheduled in August. Even if the Republican Senate were to join the Democratic House in passing a joint resolution to void the rules, that resolution would inevitably be vetoed by President Trump. Federal judges are unlikely to find the regulations “arbitrary and capricious.” Not only was the Education Department’s rulemaking process extraordinarily extensive and its response to comments meticulous, but its final rules return to the legal framework established by the Supreme Court over two decades ago. If Joe Biden is elected president in November, his administration will undoubtedly seek to change many parts of these regulations. But to do so, it would need to go through the same time-consuming process the department just completed. In the meantime, educational institutions that receive federal funds—which means all public elementary and secondary schools, and virtually all colleges and universities—will be expected to follow the new rules.
Why is federal policy on so controversial an issue being established through administrative rulemaking? The short answer is that the law on which the federal government’s authority is based—Title IX of the Education Amendments of 1972—says nothing about sexual harassment. Indeed, the term did not come into common use until several years after Congress passed that little-noted amendment to an omnibus education bill. Title IX simply states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” In the 1980s, federal courts held that sexual harassment constitutes a form of sex discrimination under Title VII of the Civil Rights Act, and they began to establish liability rules for employers. In the 1990s, courts applied similar rules to schools under Title IX. The Department of Education’s Office for Civil Rights (OCR) subsequently issued a series of guidance documents building upon these judicial precedents.
In 1998 and 1999, the Supreme Court handed down two key Title IX decisions that established the context for the current debate: Gebser v. Lago Vista Independent School District and Davis v. Monroe County Board of Education. The justices held that any school receiving federal money can be held liable for sexual harassment of students by their teachers or peers only if it (1) had “actual knowledge” of the misconduct and (2) responded with “deliberate indifference.” Moreover, the misconduct in question must be “so severe, persistent, and objectively offensive that it effectively bars the victim’s access to educational opportunity.” The Supreme Court’s interpretation of Title IX was narrower than judicial interpretations of Title VII of the Civil Rights Act and previous administrative interpretations of Title IX. Many worried that these decisions strengthened schools’ incentives to “stick their head in the sand”: They could avoid responsibility for addressing sexual misconduct by making it hard for students to report it. OCR agreed: In January 2001, it rejected the Supreme Court’s framework. The court’s interpretation, it maintained, applied only to lawsuits for money damages, not to the conditions attached to federal funding. It imposed more demanding requirements on educational institutions, but for over a decade it made little effort to enforce its mandate.
In 2011, the Obama administration launched a concerted attack on the problem of sexual assault on college campuses. OCR issued a lengthy “dear colleague letter” (DCL) spelling out the many measures schools must institute to “end any harassment, eliminate a hostile environment if it has been created, and prevent harassment from occurring again.” OCR followed up with more detailed guidance in 2014, hundreds of investigations of prominent colleges, and scores of legally binding resolution agreements. Underlying this effort was the contention that “one in five college women is sexually assaulted in college” as a consequence of campus culture. Assistant Secretary of Education for Civil Rights Russlynn Ali explained that OCR’s “new paradigm” for sexual harassment regulation was designed to “change the culture on the college campuses, and that is hugely important if we are to cure the epidemic of sexual violence.” As I explained in a previous Brookings brief and at greater length in my book, “The Transformation of Title IX,” this “new paradigm” replaced the courts’ focus on identifying and punishing the perpetrators of on-campus sexual misconduct with a much broader effort to change social attitudes and to mitigate the effects of sexual assault wherever it occurs.
The most controversial elements of OCR’s policy required schools to use the lenient “preponderance of the evidence” standard (“50% plus a feather”) in disciplinary hearings and discouraged live hearings and cross-examination. Both OCR and the White House pressured schools to employ a “single investigator” model that gives one person appointed by the school’s Title IX coordinator authority not just to investigate alleged misconduct, but to determine guilt and innocence. OCR’s expansive definition of sexual harassment included “verbal conduct” (i.e., speech) such as “making sexual comments, jokes or gestures,” “spreading sexual rumors,” and “creating e-mails or Web sites of a sexual nature.” OCR told schools that it expected them to “encourage students to report sexual harassment early, before such conduct becomes severe or pervasive, so that it can take steps to prevent the harassment from creating a hostile environment.” Its guidelines devoted many pages to the remedies schools must offer to “the broader student population” and to prevention programs—which must be “sustained (not one-shot educational programs), comprehensive, and address the root individual, relational and societal causes of sexual assault.” Schools that failed to institute all these programs and policies voluntarily were subjected to lengthy, costly, and well-publicized investigations.
This regulatory effort was praised by sexual-assault survivor groups that had formed on college campuses during the preceding decade, and by many congressional Democrats. At the same time, it came under attacked from civil libertarians (including a past president of the American Civil Liberties Union), law professors (including four prominent female legal scholars at Harvard), and the American Bar Association for endangering the due process and free speech rights of students and faculty. The American Association of University Professors called on OCR to narrow its definition of sexual harassment in order “to adequately protect academic freedom.”
The 2016 Republican platform devoted an entire section to Title IX, charging that the Obama administration’s “distortion of Title IX to micromanage the way colleges and universities deal with allegations of abuse contravenes our country’s legal traditions and must be halted.” That the Trump administration would withdraw the Obama administration’s Title IX guidance and revise its investigation strategy was a foregone conclusion. Less clear was what would replace these policies.
The general outline of the new approach was laid out in the November 2018 proposal. Its central feature was a return to the framework established by the Supreme Court in 1998-99. No longer would schools have broad responsibility “to take effective action to prevent, eliminate, and remedy sexual harassment” by “changing the culture.” Now the focus was on schools’ responsibility to address particular cases of serious sexual misconduct. At the same time, though, the new rules have gone far beyond the Supreme Court in establishing what constitutes harassment, what schools must do to identify and adjudicate cases of misconduct, and the remedies they must provide to victims of such misconduct. As a result, the new administrative regulations are less radical—and more demanding—than the Education Department’s critics often suggest.
So far, almost all the commentary has focused on the live hearing/cross-examination question. Editorials in the Los Angeles Times and Wall Street Journal have praised the department for “curbing some of the excesses of the previous system” and making “university kangaroo courts a thing of the past.” In contrast, Catherine Lhamon—the former assistant secretary of education for civil rights who played a key role in establishing the Obama administration’s policies—claimed that the new rules are “taking us back to the bad old days, when it was permissible to rape and sexually harass students with impunity.” In a short tweet, former secretaries of Education Arne Duncan and John King argued that the regulations “unnecessarily burden victims and deepen trauma for students by increasing the chance of victims being exposed to their accused assailants.” The presidents of the National Women’s Law Center and the Leadership Conference on Civil and Human Rights—Fatima Goss Graves and Vanita Gupta, respectively—each offered harsh evaluations. Other than two useful articles in The Chronicle of Higher Education, so far little attention has been paid to the range of issues addressed in the final regulations.
This policy brief attempts to fill this gap by examining seven features of the regulations to which schools at all levels—from kindergarten to graduate—must pay attention. The first two sections look at the procedures that colleges and universities must put in place for investigating and adjudicating misconduct claims. The next summarizes the different rules established for K-12 schools. The fourth section explains how the new regulations narrowed the definition of sexual harassment, and the fifth how they define the activities covered by Title IX. The sixth reviews the procedures for reporting misconduct and filing formal complaints. The final section examines schools’ responsibilities for remedying and preventing sexual harassment.
School officials should keep in mind that, for the most part, the regulations only set forth the minimum steps they must take to comply with Title IX. For example, although colleges are not required to make professors and coaches “mandatory reporters,” nothing in the regulations prohibits them from placing this responsibility on any employee. The Education Department has also determined that Title IX does not give it authority to cover sexual misconduct in study abroad programs. But schools can still cover these programs in their own student conduct codes, and they can always provide additional services to those injured by such misconduct. Previous OCR guidelines included an ambiguous and often confusing mix of legally binding requirements and “best practices” suggestions. Since the new rules have gone through the rigorous APA rulemaking process, they are unambiguously legally binding. They establish what educational institutions must do and cannot do—not what might be a good idea.
LIVE HEARINGS AND CROSS-EXAMINATION
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. The Obama-era guidelines did not prohibit live hearings and cross-examination; they “discouraged” but did not prohibit the accused from personally cross-examining their accuser. (For the sake of clarity, I will henceforth adopt the language of the new regulations by referring to the target of the alleged misconduct as the “complainant” and the alleged perpetrator as the “respondent.”) During its negotiations with individual schools, though, OCR strongly opposed live hearings and cross-examination, and encouraged them to adopt the “single investigator” model. About one-third of the schools targeted by OCR adopted that approach.
“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.”
The Education Department’s new rules explicitly prohibit postsecondary schools from employing the “single investigator” model: “Fundamental fairness,” it claims, requires that “no decision-maker be the same person who serves as the Title IX Coordinator or the investigator.” (1247) Those “decision-makers” must not only review the record created by investigators, but also hear live testimony from the witnesses upon whom investigators have relied. Decision-makers cannot rely upon the statement of any witness who is unwilling to submit to cross-examination by the advisors appointed to represent the complainant and the respondent. These advisors can be but need not be lawyers.
Throughout the rulemaking process, the department has insisted that cross-examination is indispensable for determining the credibility of witnesses, especially in circumstances when other forms of evidence are unavailable. This position has received support from a number of state and federal courts, which have ruled that some form of cross-examination is required to protect the due process rights of students in both public and private institutions.
The department’s critics have argued that cross-examination threatens to “re-traumatize” complainants, discourage the reporting of misconduct, make the process unnecessarily adversarial, and give an unfair advantage to those who can hire lawyers. To mitigate these significant dangers, the proposal required cross-examination to be conducted by the parties’ advisors, never by the parties themselves. It also allowed either party to request that they remain in separate rooms, with cross-examination conducted remotely. The final version added several other precautions. Most importantly, those conducting the hearing must screen each cross-examination question to ensure that it is both relevant and civilly presented. Almost all questions about either party’s prior sexual behavior are off-limits. Those who conduct the hearing must follow their state’s rape shield laws and respect the confidentiality of the parties’ health and education records. The hearings will be recorded but not open to the public.
These modifications have not mollified many critics, who will not only challenge the cross-examination requirement in court, but also try to eliminate it through legislation and subsequent administrative action. Since several courts (most notably the Sixth Circuit) have held that cross-examination is constitutionally required, it is unlikely that courts reviewing the regulations will hold that the Department of Education does not have statutory authority under Title IX to do the same. Whether or not this requirement has the deleterious effects predicted by critics no doubt will generate extensive analysis and heated debate for many years.
OTHER DUE PROCESS REQUIREMENTS
The new rules also include several additional due process requirements that conflict with some of the practices adopted by colleges in response to the Obama-era mandates. Students and employees accused of misconduct must be presumed innocent until proven guilty. That means not only that schools bear the burden of proof in disciplinary hearings, but also that pre-hearing accommodations cannot place a heavier burden on the respondent than on the complainant. (The Obama administration’s guidelines had allowed schools to place more interim restrictions on the former than the latter.) To ensure impartiality, decision-makers cannot be employees of the Title IX coordinator. The materials used to train investigators and decision-makers must be available on the school’s website. (Schools’ failure to disclose such training material has generated substantial criticism over the last several years.)
The Obama-era guidelines required all schools to use the “preponderance of the evidence” standard of proof rather than the somewhat more demanding “clear and convincing evidence” standard previously used by some schools. The new rules offer schools the choice of either standard—but with a crucial caveat: They must apply the same standard to all sexual harassment cases, including those against faculty members and staff. At many schools, collective bargaining agreements, tenure rules, and academic freedom codes require use of the “clear and convincing evidence” standard in disciplinary proceedings against employees. Since the standard of proof “should not vary based on the status of the respondent (i.e. student or employee),” many schools will be required to apply the “clear and convincing” standard to everyone.
The new regulations also require that all school rules governing sexual harassment proceedings and all the training provided by the Title IX coordinate be “gender neutral,” free of any “sex bias” or “sex stereotyping.” They prohibit investigators or decision-makers from “drawing conclusions about credibility based on a party’s status” since this would “inevitably prejudge the facts at issue.” (809) While this might seem obvious, it conflicts with the frequently repeated view that investigators and decision-makers should “believe the victim” and that “trauma-informed” training requires them to disregard inconsistencies in complainants’ stories. According to the new rules, from the outset complainants should not be considered any more credible than respondents. Any investigator or decision-maker who questions this equivalence cannot be considered “impartial.” Even those sections of the rules that might seem like mere platitudes could become the source of considerable controversy.
The procedural mandates included in the final regulations are more detailed than those in the Obama administration’s 2011 and 2014 guidelines. At the beginning of an investigation, a school must provide both parties with a written explanation of the allegations with “sufficient details known at the time and with sufficient time to prepare a response before any initial interview.” If the nature of the allegations changes over the course of the investigation, that, too, must be communicated in writing to both parties. Both parties have a right to see all the evidence collected by the investigator. At least 10 days before the hearing, both parties must receive a written report that “fairly summarizes the relevant evidence.” At the conclusion of the hearing, the “decision-makers” must provide “a statement of, and rationale for, the result as to each allegation.” Either party can appeal that decision on the basis of (1) procedural irregularity, (2) new evidence, or (3) bias on the part of the investigators or decision-makers. The 2018 proposal did not allow the complainant to appeal punishments she or he considers too lenient. The final version deleted this prohibition, allowing schools to decide “whether severity or proportionality of sanctions is an appropriate basis for appeal.” But following the general rule that the complainant and the respondent must be given identical rights, it added that “any such appeal … must be offered equally to both parties.”
ELEMENTARY AND SECONDARY SCHOOLS
When the courts and OCR first addressed the sexual harassment issue in the 1990s, their focus was on elementary and secondary education (ESE). All the Supreme Court decisions on the topic involved K-12 schools. The Obama administration’s guidelines, in contrast, were designed primarily for colleges and universities; its investigations were limited to those institutions. Yet federal Title IX rules have always applied to ESE as well. The 2018 proposed regulation suggested that it might be appropriate to write separate rules for the two types of institutions. The final rule did not take this step, but it did make several important distinctions between the requirements appropriate for each.
Most importantly, the grievance procedures established by K-12 schools “may, but need not” include live hearings and cross-examination.” For the most part the regulations “require only that schools provide an equal opportunity to the parties,” leaving schools with the flexibility “to make the grievance process less formal or intimidating for students.” (1683) Live hearings and cross-examination might be appropriate for students approaching age 18, but certainly not for younger ones. Because “the Department agrees that schools themselves know best how to engage with their students,” school officials are “encouraged to use their discretion and expertise within the confines of the final regulations.” (1685) Nonetheless, schools must provide to each party—and their parents—a description of the allegation and a copy of the investigative report on the incident. They also “must afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party.”
The other major difference is that the regulations do not specify who must be deemed a “mandatory reporter” in colleges and universities, but they require all ESE teachers and staff to report allegations of misconduct that they have witnessed or heard about. According to the Education Department, college and graduate students are mature enough to decide for themselves whether to report misconduct to the Title IX office. We cannot expect that of younger children. Moreover, K-12 schools and their employees “stand in a special relationship regarding their students, captured by the legal doctrine that school districts act in loco parentis with respect to authority over, and responsibility for, their students.” (1676) In many instances, sexual misconduct that targets children is a criminal offense, triggering states’ mandatory reporting requirements. The proposal had made only ESE teachers “mandatory reporters.” Persuaded by commenters that one cannot expect children to know which employee is a mandatory reporter, the final rules extended this to other staff members.
The rules applying to ESE became more important when the department announced in February that it will devote more resources to investigating sexual misconduct in these schools. OCR’s investigation of Chicago schools uncovered serious problems, and culminated in a detailed 2019 agreement specifying how the school system must respond to sexual harassment complaints. Other school districts can expect to come under similar scrutiny in coming months and years.
WHAT CONSTITUTES “SEXUAL HARASSMENT” UNDER TITLE IX?
What forms of harassment require a response from educational institutions? Occasional name-calling on a school playground? Probably not. Sexual assault in a college dorm? Definitely yes. But there are many types of misconduct that fall between these extremes. While the Supreme Court held that harassment must be “severe, pervasive, and objectively offensive” to trigger Title IX, the Obama OCR pushed schools to address harassment before it “becomes severe or pervasive” in order to prevent the creation of “a hostile environment.”
Protecting freedom of speech is a major theme in the Department of Education’s justification for its regulations. The agency claimed that “evidence that broadly and loosely worded anti-harassment policies have infringed upon constitutionally protected speech and academic freedom is widely available.” (506) To address this problem, the department has attempted to steer a middle path between the Supreme Court’s narrow definition of sexual harassment and the Obama administration’s more expansive understanding. Its definition has three parts. First, any form of quid pro quo harassment—that is, conditioning any educational opportunity or benefit on the granting of sexual favors—constitutes a per se violation of Title IX, regardless of its severity or pervasiveness. Quid pro quo harassment constitutes conduct without any constitutional protection. Second, the final version of the regulations added the proviso that any form of sexual assault, dating violence, domestic violence, or stalking as defined by the Clery Act constitutes sexual harassment. These forms of misconduct are so serious in themselves that no finding of “pervasiveness” is required.
The third element is more controversial. To violate Title IX, all other forms of “unwelcome conduct” must be “so serious, pervasive, and objectively offensive that it effectively denies a person equal access” to an educational program. The Education Department rejected the position that Title IX requires schools to prohibit comments that might seem minor in themselves but contribute to a broader “hostile environment”:
The Department understands that research shows that even “less severe” forms of sexual harassment may cause negative outcomes for those who experience it. The Department believes, however, that severity and pervasiveness are needed elements to ensure that Title IX’s non-discrimination mandate does not punish verbal conduct in a manner that chills and restricts speech and academic freedom, and that recipients are not held responsible for controlling every stray, offensive remark that passes between members of the recipient’s community. (470-71)
Title IX, it argued, “does not represent a ‘zero tolerance’ policy banning sexual harassment as such,” but rather offers “effective protections to individuals against discriminatory practices, within the parameters set forth under the Title IX statute and Supreme Court case law.” Schools remain free to include more restrictive provisions in their student conduct codes—for example, prohibiting microaggressions—but they may not include them in their Title IX rules.
HOW FAR DO SCHOOLS’ TITLE IX RESPONSIBILITIES EXTEND?
Title IX covers all elements of a school’s “educational programs and activities.” OCR’s 2014 guidance required schools to “process all complaints of sexual violence, regardless of where the conduct occurred, to determine whether the conduct … had continuing effects on campus.” Schools were expected to address those “continuing effects” by providing “appropriate remedies for the complainant, and, where appropriate, the broader school population.” That meant that schools must provide remedies even for sexual harassment that they have no power to prevent. Both the 2018 proposal and the 2020 final rule, in contrast, hold schools responsible only for harassment that occurred within their program.
The 2018 proposal was criticized for defining “program or activity” too narrowly. Most importantly, it seemed to relieve colleges of responsibility for what happens in fraternity houses, the site of many campus sexual assaults. The Department of Education responded by amending the regulations to specify that the phrase “education program or activity” includes “locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurs” as well as “any building owned or controlled by a student organization that is officially recognized by a postsecondary institution.” This leaves open the possibility that misconduct that takes place in fraternities not “officially recognized” by colleges will not be covered by Title IX rules. But schools retain the authority to prohibit misconduct in such “unrecognized” frat houses in their student conduct codes.
The Education Department’s rules have also been criticized for failing to cover harassment that takes place in study abroad programs. The agency maintains that its authority is limited by the clear words of Title IX: It applies only to persons “in the United States.” Moreover, the Supreme Court has established a strong presumption against extraterritorial application of federal law. Here again, nothing prevents schools from including study abroad programs in their student conduct codes. Just as schools can punish students for plagiarism, they can punish them for forms of sexual misconduct not covered under Title IX—as long as they respect students’ due process rights. But OCR will not investigate complaints from study abroad programs, and federal courts will probably not hold schools liable under Title IX for misconduct in those programs.
REPORTING MISCONDUCT AND FILING COMPLAINTS
According to the framework established by the Supreme Court and adopted by the Department of Education, a school bears responsibility for redressing sexual harassment only when it has “actual knowledge” of such misconduct. To address the possibility that schools would take a “hear no evil, see no evil” approach to the problem, the new rules require them to establish a clear, well-publicized, and easy-to-use reporting system. As noted above, at the ESE level, all employees are “mandatory reporters,” which means that they must report all instances of misconduct that they have witnessed or heard about to the person responsible for investigating such allegations. At the postsecondary level, the rules do not dictate who must be categorized as “mandatory reporters.” Schools can place this responsibility on teachers, coaches, resident assistants, and others, but need not do so.
The new rules emphasize the importance of respecting the “autonomy” of the targets of sexual harassment by giving them substantial control over when to file an initial report with the Title IX coordinator and whether to take the further step of lodging a formal complaint. Whenever the Title IX coordinator receives a report about possible misconduct—whether from the person subject to the harassment or from anyone else—the coordinator must contact the complainant and immediately offer “supportive measures.” These may include: “counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, [and] increased security and monitoring of certain areas of the campus.” These steps “are designed to restore or preserve equal access to the recipient’s education program or activity without unreasonably burdening the other party.” Whether the aggrieved individual takes the further step of filing a formal complaint that triggers a full investigation is up to them. Except in cases involving allegations of quid pro quo harassment, the two parties can agree to engage in an “informal resolution process” in lieu of a formal investigation.
“To address the possibility that schools would take a ‘hear no evil, see no evil’ approach to the problem, the new rules require them to establish a clear, well-publicized, and easy-to-use reporting system.”
Critics have charged that this places too much responsibility on the victims of misconduct to report harassment and lodge formal complaints. Schools, they warn, have subtle ways of discouraging students from taking such action. The Department of Education contends that its approach gives complainants more control over how their case is handled, providing them with immediate “supportive services,” helping them resolve the conflict informally if they so choose, and giving them the option of initiating a process that could impose disciplinary sanctions on the respondent. Nonetheless, the Title IX coordinator retains discretion to initiate a formal investigation over the objection of the complainant—recognizing, of course, the difficulty of pursuing the investigation without the cooperation of the alleged victim.
These reporting rules place few new demands on schools that had previously instituted procedures to comply with OCR’s 2011 and 2014 guidelines. College and universities retain control over who within their institution is considered a mandatory reporter, and when Title IX coordinators can initiate investigations. What they can no longer do, though, is issue restrictions that fall more heavily on the respondent than on the complainant before there has been a formal finding of guilt. That practice, the department now contends, conflicts with the presumption of innocence that must underlie all disciplinary proceedings. Schools can take emergency measures to remove a student or employee from campus only when there is an immediate threat to the physical health and safety to those on campus.
REMEDIES AND PREVENTION
One of the biggest differences between the Obama-era Title IX guidance and the 2020 regulations is what the latter do not say. The 2011 and 2014 guidance documents contained long lists of services that schools must provide to those determined to have been the victims of misconduct. That included free “comprehensive, holistic victim services, including medical, counseling, and academic support services such as tutoring,” “arranging for the complainant to re-take a course or withdraw from a class without penalty,” and “providing an escort to ensure that the complainants can move safely between classes and activities.” OCR’s 2014 guidance document devoted two single-spaced pages to a list of remedies “for the broader student population.” Other sections spelled out the “preventive measures” that schools were expected to institute. These include extensive training for employees and students, and regular “climate checks” to determine if these preventative measures have been effective. OCR offered extensive advice on “best practices” for such training and evaluation.
Beyond the list of possible pre-hearing “supportive services” cited above, the new rules say almost nothing about the remedies that schools must offer either to aggrieved individuals or to the student body as a whole. Nor do they address prevention. In particular, the Education Department “decline[d] to list prevention and community educational programming as a possible option schools can utilize as a remedy after the conclusion of a grievance process, or to add a requirement of educational outreach and prevention programming elsewhere within the final regulations.” It left these matters to each educational institution, explaining that “the final regulations are focused on governing a recipient’s response to sexual harassment incidents, leaving additional education and prevention efforts within a recipient’s discretion.” (600)
The department responded obliquely to the charge that the Obama-era guidelines had led colleges to establish extensive and intrusive “sex bureaucracies.” According to a well-known article by Harvard Law School professors Jacob Gersen and Jeannie Suk Gersen, the “college sex bureaucrats” empowered by OCR’s guidelines “are not simply training students on the rules of rape, sexual assault, and sexual harassment,” but are “instructing on, advising on, counseling on, defining, monitoring, investigating, and adjudicating questions of sexual desire.” Such training “is rapidly morphing into the sex instruction reminiscent of guidance provided by sex therapists like Dr. Ruth.” As to the propriety of such activity, the department remained agnostic: It “does not intend, through these final regulations, to encourage or discourage recipients from governing the sex and dating lives of students, or to opine on whether or not recipients have become the ‘sex police;’ whether such a trend is positive or negative is outside the purview of these final regulations.” What schools can no longer do, though, is claim that such training is mandated by the federal government.
A week after the Department of Education released the new regulation, the American Civil Liberties Union (ACLU), Know Your IX, and other advocacy groups filed suit in federal district court in Maryland seeking to overturn them. Soon thereafter, 18 state attorneys general filed a brief in another federal court attacking virtually every aspect of the department’s regulation and its process. Under the APA, reviewing courts can strike down agency rules only if they are “arbitrary and capricious,” “in excess of statutory authority,” or promulgated in a procedurally deficient manner. Although this is a demanding standard, courts have placed on agencies the responsibility to respond to all “significant” comments, explaining why it made some changes in the proposal and refused to make others. Much of the agency’s 2,000-page explanation is designed to protect the new rules from legal challenge. (For example, the Education Department offered a seven-page response to the preposterous claim that Betsy DeVos is not really the secretary of education because her nomination was confirmed only when President of the Senate Mike Pence broke the tie.) Since the ACLU’s central argument is that the department erred in adopting the Supreme Court’s “actual knowledge”/“deliberate indifference” framework, this is unlikely to be a winning argument—especially if the case makes it all the way to the Supreme Court.
Oddly, the plaintiffs in this case did not challenge the most controversial part of the regulations, its cross-examination/live hearing mandate. It is possible, though, that additional challenges raising stronger arguments will be filed in other federal district courts. The APA does not specify which court should review agency regulations, opening the door to forum-shopping by challengers.
“Much of the agency’s 2,000-page explanation is designed to protect the new rules from legal challenge.”
If Democrats win the presidency, the House, and the Senate in November, it is possible (but not likely) that they could use the Congressional Review Act to overturn the regulations. The CRA applies to rules issued within the past 60 “legislative days.” If COVID-19 sharply limits the number of days Congress remains in session during 2020, the new Democratic majorities might have a shot. A more plausible scenario is that they would try to pass legislation or an appropriations rider preventing their enforcement. During this session of Congress, four Democrats introduced a bill to prevent the Education Department from implementing the regulations, and the leading Democrat on the Senate education committee, Patty Murray (Wash.), indicated that she might try to add an amendment to the Higher Education Act that would return to the policies of the Obama administration. Whether Democrats will have enough votes or enough interest to pursue this option is anybody’s guess. More likely is that a Biden administration would initiate another long rulemaking process, one that would be followed by yet another round of judicial review.
The most immediate question is how colleges and universities will respond to the new rules. Despite the fact that many schools initially opposed the Obama-era policies, few are eager to go through another round of revision. They will inevitably find themselves caught between the Department of Education on the one hand and student activists on the other. The president of the American Council on Education, the umbrella organization representing college presidents, accused the department of exercising “appallingly poor judgement” when it issued its rule in a period of “high stress, heroic efforts and extraordinary adaptation” to COVID-19. But university lawyers and Title IX offices have had ample time to prepare for this moment: Many state and federal courts have already required cross-examination in sexual harassment cases; nearly a year and a half ago, the Department of Education left little doubt that it would narrow the definition of sexual harassment and require live hearings and cross-examination. Although many colleges and universities will need to make substantial changes in their grievance procedures, most of the other practices they established in response to the Obama administration’s guidelines and investigations can remain in place. Indeed, on most matters, schools have indicated their intent to stand pat.
Given the frequency with which the Trump administration has acted precipitously, erratically, and without appropriate respect for legality or expertise, the Department of Education deserves credit for going through a transparent, time-consuming, and rigorous rulemaking process and respecting the Supreme Court’s interpretation of Title IX. This process not only generated more public participation than any other rulemaking in Title IX history, it also forced the Department of Education to address a number of problems with its 2018 proposal. It revised that proposal in ways both large and small. Just as importantly, its 2,000-page explanation of the regulations clarified a multitude of issues that schools will inevitably confront in coming months. For example, those pages include lengthy discussions of how Title IX rules mesh with the requirements placed upon schools by Title VII of the Civil Rights Act, the Individuals with Disabilities Education Act, the Family Education Rights and Privacy Act, and state criminal statutes and rape shield laws. No such public participation, deliberation, and explanation was available when the department tried to rule through dear colleague letters.