United States: Newly Proposed Title IX Regulations Promise Sweeping Changes

Nathan A Adams, IV is a Partner in our Tallahassee office

Paul G Lannon is a Partner in our Boston office.

Philip J Catanzano is a Senior Counsel in our Boston office.


  • The U.S. Department of Education (Department) on Nov. 16, 2018 proposed sweeping changes to the regulations implementing Title IX, the federal law prohibiting sexual harassment and sex discrimination.
  • The newly proposed regulations underscore the need for due process and equitable treatment for all parties, while also pulling back some of the obligations created by the prior administration.
  • The most controversial changes are those addressing how institutions must establish Title IX violations, requiring in the higher education context live hearings and cross-examination of witnesses.

The U.S. Department of Education (Department) has proposed sweeping changes to the regulations implementing Title IX, the federal law prohibiting sexual harassment and sex discrimination. The proposed regulations depart markedly in principle and substance from several non-regulatory guidance documents the Department issued under the prior administration. Substantively, the prior administration's guidance focused on the structure and policy "suggestions" institutions were pushed to implement when sexual misconduct was alleged on campus. Critics of the prior administration argued that these suggestions were, in practice, closer to federal mandates, and that the Department was more focused on the rights of the accuser than those of the accused. The newly proposed regulations underscore the need for due process and equitable treatment for all parties, while also pulling back some of the obligations created by the prior administration. Likely the most controversial changes are those addressing how institutions must establish Title IX violations, requiring in the higher education context live hearings and cross-examination of witnesses.

Defining Sexual Harassment

The definition of sexual harassment, drawn from U.S. Supreme Court precedent, is narrower than prior guidance indicated. The regulations define sexual harassment to mean 1) conditioning the provision aid, benefit or service on participation in unwelcome sexual conduct; 2) unwelcome sexual conduct that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the education program or activity; or 3) sexual assault as defined by the federal law governing campus safety, the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act).

School's Duty to Respond

A school must take action to satisfy its Title IX obligations when three conditions are present. First, a school official with authority to take corrective action must receive actual notice of an alleged violation. Constructive notice, based on inferences about what a school should reasonably know, would no longer be sufficient to trigger Title IX responsibilities. Second, the alleged harassment must have occurred within the school's own program or activity on or off campus. Prior guidance focused instead on the impact of the harassment on the school's students or employees. The proposed regulations are unclear about the circumstances in which private, off-campus housing, e.g., Greek residences or other theme housing, would be covered. Third, the alleged harassment must have been perpetrated against a person in the U.S., which excludes study abroad programs.

The regulations also distinguish between reports and formal complaints. Under the prior guidance, institutions were broadly required to execute their policies upon any form of notice of sexual misconduct, absent extraordinary circumstances. Under the proposed regulations, schools must investigate only those reports by accusers who elect to sign written allegations satisfying the three conditions for triggering Title IX enforcement. If an individual opts not to file a formal, written complaint, schools must review and offer "supportive measures" whenever there is a report of sexual harassment. Supportive measures, which closely resemble the notion of "interim measures" under prior guidance, must be designed to preserve or restore access to the school's education program or activity, but may not unduly burden one party over another. Importantly, for these informal allegations, a full investigation is not required. However, the proposed regulations do still allow the Title IX coordinator to file a formal complaint whenever there is a suspected serial offender. To avoid hurried investigations that might sacrifice fairness and accuracy, the Department's regulations would permit schools to extend the 60-day grievance process for reasonable grounds (e.g., witness unavailability). Mediation and other means of resolving complaints informally, without an adjudication, are expressly permitted by the regulations if schools give the parties detailed information about the process and its consequences.

The Department proposes to judge a school's response to sexual harassment according to the same standard applied in civil actions under Title IX — "deliberate indifference." Pursuant to that standard, a school has violated Title IX only if it responded with deliberate indifference to actual notice of a sexual harassment complaint. The proposed standard is much more deferential to the judgment of schools than the much lower "reasonableness" standard applied by the earlier guidance.

Standard of Proof

The Department previously interpreted Title IX as requiring a "preponderance of the evidence" standard for proving sexual harassment on campus. The regulations would give schools a choice: preponderance of the evidence or the significantly higher standard of clear and convincing evidence. However, if they choose the lower standard, the school must use it for other conduct code violations with similar sanctions, and for both students and employees.

Safeguards for the Accused – Hearings In, Single Investigator/Adjudicator Model Out

The regulations add multiple due process protections for the accused "respondent," beginning with an express presumption of innocence throughout the grievance process, and with the burden of proof resting on the school, not the parties. Defenders of the accused say this change levels the playing field, whereas critics object because, among other things, the school has no subpoena power or other authority to compel the production of witnesses or records. The regulations would prohibit the "single-investigator model," instead requiring a decision maker separate from the investigator or Title IX coordinator to decide formal complaints.

For higher education, hearings would be mandatory, and the parties would be entitled to live viewing of witnesses and cross-examination of the witnesses by advisors of their choice, in person or in separate rooms through the use of videoconferencing, subject to rape shield protections. The accused have long advocated for cross-examination, whereas critics raise concerns about transforming an educational institution's disciplinary process into a courtroom drama without the safeguards of rules of procedure, rules of evidence or judicial oversight. Critics worry that justice will go to the party who can hire the best lawyer and that the cross-examination requirement will discourage accusers from bringing formal complaints.

The Next Steps

The Department proposed the regulations on Nov. 16, 2018. They are subject to public comment for 60 days after their formal publication in the Federal Register. If you would like more information about the proposed regulations or compliance with Title IX, please contact the authors or your attorney at Holland & Knight.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions