United States: Department Of Education Proposes Significant Changes To Title IX Regulations

(February 25, 2019) - The U.S. Department of Education has proposed new regulations that, if adopted, would significantly change the landscape of Title IX sexual misconduct investigations. Title IX, enacted in 1972, bars sex discrimination in schools and colleges ("recipients") that receive federal funding.

The proposed regulations add new due-process protections to respondents in Title IX investigations. The U.S. Secretary of Education, Betsy DeVos, summed up the changes when she stated, "Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined."1

The proposed regulations would replace all existing administrative guidance documents that were not passed through the rulemaking process. On February 15, 2019, the public comment portion of the rulemaking process was completed. The proposed regulations' major changes to Title IX investigations include the following:

  • Adopting a narrower definition of sexual harassment;
  • Limiting recipients' investigation responsibility to only cases in which formal complaints are filed and only to incidents that take place within an educational program or activity;
  • Requiring live hearings and guaranteeing the right of cross-examination;
  • Providing recipients with the option of using a higher standard of proof; and
  • Providing recipients with more flexibility for informal resolution through mediation or other alternative dispute resolution procedures.

Narrower Definition of Sexual Harassment

The proposed regulation defines sexual harassment as either an employee's conditioning the provision of an aid, benefit, or service on an individual's participation in unwelcome sexual conduct (i.e., quid pro quo), "nwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies access to the recipient's education program or activity," or sexual assault as defined in 34 CFR 668.46(a). This contrasts with prior guidance, which defined sexual harassment more broadly as "unwelcome conduct of a sexual nature."

The new definition creates a greater evidentiary burden than the prior rule and codifies existing court decisions that require the complainant to show that the alleged sexual misconduct was so severe, pervasive, and objectively offensive that it deprived the complainant of access to the educational opportunities or benefits provided by the recipient. (See Davis v. Monroe County Bd. of Educ., 52 U.S. 629, 651-52 (1999); see also T.C. ex rel S.C. v. Metro. Gov't of Nashville & Davidson Cty., 2018 U.S. Dist. LEXIS 113517, at *18-19 (M.D. Tenn. July 9, 2018).

Change in Reporting Procedures

Under the proposed regulations, recipients are not required to investigate alleged misconduct unless a formal complaint is made to a designated Title IX official with the ability to remedy the situation, thereby limiting a recipient's obligation to investigate only those reports of which the recipient has "actual knowledge." This would not include reports made to professors, resident advisors, and others who have not been designated as the appropriate Title IX reporting official. This differs dramatically from the prior guidelines, which required almost every campus employee to be designated as a mandatory reporter of sexual misconduct who was required to notify the Title IX office upon receiving information about a possible incident.

Similarly, the proposed regulations hold recipients responsible only for sexual misconduct that takes place within its educational "program or activity" and perpetrated by a person "under the school's disciplinary authority." In contrast, prior guidelines 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."

Live Hearings and the Right to Cross-Examination

The proposed regulations are also groundbreaking in placing an emphasis on the presumption of innocence of the accused party. Significantly, the new regulations require that recipients "must provide for a live hearing" when adjudicating a case. This stands in sharp contrast from the previous guidelines that discouraged live hearings and instead encouraged schools to have a single investigator adjudicate the claim through a series of separate meetings with the parties and witnesses.

Notably, the new regulations also require recipients to provide an opportunity for cross-examination of all witnesses, including the parties. Students are prohibited from cross-examining each other directly. Instead, cross-examination must be done by each party's advisor of choice, and an advisor must be provided for this purpose if a party does not have one. In addition, the proposed regulations allow a witness to be questioned from a separate room, provided that the questioning party and fact finders can "simultaneously see and hear" the person testifying.

Burden of Persuasion Altered

The proposed regulations allow recipients the option of adjudicating sexual misconduct claims using either a "preponderance of evidence standard" or a "clear and convincing" evidence standard, a higher burden of proof, whereas the prior guidance required schools to utilize the preponderance of evidence standard.

The proposed regulations allow the recipient to adjudicate using a preponderance of the evidence "only if it is also used for conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanctions." Otherwise, the proposed regulations mandate recipients to use the clear and convincing standard.

Encouragement of Informal Dispute Resolution

The proposed regulations provide that the parties may engage in an informal dispute resolution process such as mediation at any time before a final determination of the matter has been reached. Though the prior guidelines allowed for informal dispute resolution in certain circumstances, they prohibited mediation in sexual assault cases, even on a voluntary basis.


If the proposed regulations in their current form go into effect, there are two primary concerns for recipients:

First, recipients will be charged with investigatory obligations upon receipt of "actual knowledge" of sexual harassment. Recipients should provide updated training to their staff and educators regarding both informal and formal reporting of sexual harassment claims under the regulations.

Second, recipients should update their grievance policies and procedures to comply with the new regulations. Lewis Brisbois can help you address both concerns.


[1] Russlynn Ali, Letter p. 3, https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf.

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.

In association with
Related Topics
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