Transcript

Host: Hello, and welcome to today’s webinar, Review of Department of Education’s July 2021 Q&A on the Title IX Regulations. Note that all attendees are in listen-only mode. Today’s program will be approximately 30 minutes long. Please let us know if you need help with any technical problems. Enter your question in the question box on the bottom of your screen and click submit. Your submitted questions will be visible only to the technology team. The recording of this program should be available on our risk management website, www.edurisksolutions.org, within the next few days. And now here is today’s moderator, Hillary Pettegrew.

Hillary Pettegrew: Thank you, and welcome. I’m Hillary Pettegrew, Senior Risk Management Counsel at UE, and I’m pleased to introduce our speaker, whose full bio you can view on the side of the screen. Josh Richards is a Partner with Saul Ewing Arnstein & Lehr, in Philadelphia, Vice Chair of the firm’s Higher Education Practice, and a well-known expert on Title IX. Welcome, Josh, and thanks for joining us.

Josh Richards: Thanks Hillary, and thanks to UE for inviting me to talk to your members about this important topic.

Pettegrew: Today, Josh will address significant items from the Q&A document released in July by the Office for Civil Rights (OCR), which basically explains how the agency now interprets the 2020 Title IX regulations. Although the Department of Education plans to amend those regulations, we’ll be living with them for a while yet, because a Notice of Proposed Rulemaking, or essentially a draft of the new regulations, won’t be released until May 2022. And that version would be subject to public comment and potentially further revisions. In the meantime, it’s important to understand how OCR intends to apply the existing regulations, and Josh will help us with that.

Finally, we’ve included two resources in the Resources section on the screen. The first is a link to the July Q&A document from OCR itself. And the second is a very recent federal court ruling on the 2020 regulations, which Josh will discuss. Josh, the floor is now yours.

Richards: Thanks so much for that introduction, Hillary. Here’s a little agenda for what we’re going to try and cover today. I want to give this at the outset because so much of what we’re going to talk about today with respect to this Q&A document is what hasn’t changed. And so I don’t want to bury the lead. There are things that are of minor concern, of minor interest in a couple of things that are, I think, of substantial interest in this document.

But first we’re going to sort of recap the big picture of what this Q&A represents. We’ll talk about what parts of the final rule OCR has decided to emphasize. And that’s the final rule issued by the prior administration that this administration is emphasizing. We’re going to talk about places where the department chose to either expand a little bit on or alter prior guidance. And these tend to be the exception rather than the rule. And then we’re going to talk about what I think are the two most significant compliance challenges associated with the Q&A.

So first, let’s talk about the big picture with respect to this Q&A document, and really the question that we were all wondering about coming into this document, which OCR had announced in advance. And that question is how is this Cardona administration going to enforce this DeVos rule that President Biden and the department have publicly criticized? What are they going to do with a rule that they are on record as not liking?

Well, for me, the most newsworthy part of this Q&A, as I said on the NACUA presentation that I gave last week, is how unnewsworthy most of it really is. We didn’t know coming into this Q&A whether this administration was going to enforce the prior administration’s Title IX regulations with vigor. I think most of us thought that this new administration would take every opportunity to find ways to either weaken the rule or adapt it for this administration’s priorities, which I think we all know are different than the prior administration’s.

The options available to this administration included a whole bunch of things. First of all, we have this final rule, but it’s supported in large measure by this 2,000-page guidance document, the preamble, which provides a lot of the explanatory information about how to apply the rule. Now, the preamble doesn’t have the force of law. The preamble didn’t go through notice and rulemaking. And it doesn’t have any long-lasting effect under the law, except what the department chooses to give it. And so this department could have rescinded large portions of the preamble to the extent they represent sub-regulatory guidance. But it didn’t do that. It didn’t issue new guidance that could have given more nuance to the preamble, except in the form of this Q&A. And it didn’t rescind any of the department’s Title IX guidance documents issued in January, shortly before this administration went out.

Instead, what they did was essentially endorse the rule and say, “We’re essentially going to enforce this rule as it was written.” So on page 56 of the Q&A, if you dig in, it makes clear that this department is going to enforce the final rule. It reminds us that neither the Q&A or the preamble have the force of law. It emphasizes that the department is undertaking a comprehensive review of its Title IX regulations, but it makes clear that in the meantime, this is what it’s going to stick with. The department spends 30 pages essentially going through the high points of the final rule and saying, “These are the questions and answers, and we’re sort of playing this by the book”.

The other thing that I would just comment on, which I found really interesting, is that at the end of the Q&A there’s this appendix that has sample policy language. And of course, the department provides a number of disclaimers around that policy language saying, “Adopting this language doesn’t demonstrate, per se, compliance.” But I think this is a really useful thing for the department to do. And something that it hasn’t done before, which is to sort of offer provisions that the department views as exemplars with the final reg.

As I said a moment ago, most of this Q&A is really just sort of a reiteration of what the prior department had said about how to interpret this final rule in a very dry sort of discussion, albeit a really clear and helpful one about how to apply this final rule.

So I want to just take a few minutes and focus on just a few of the points that the department chose to reiterate. Because I do think that it provided some helpful guidance to institutions, even if it’s not significantly departing from what we’re doing at present.

So the first point that I want to cover with respect to what OCR chose to reiterate here is the reminder from OCR, which is not inconsistent with what the DeVos administration said about the rule, is a reminder of institutions’ option to respond to conduct that doesn’t meet the definition or sort of final rule sexual harassment.

So the department reminds us in question seven, in particular, that schools are still free to do more than the rule requires. So schools are still free to have a Title IX specific policy, but to also have sort of a concentric ring around that policy that captures conduct that occurs outside the program or activity, outside the United States, may not meet the definition for sexual harassment, and the regulations with respect to severity, pervasiveness, and objectively offensive. And so this sort of goes to what I think OCR is trying to do with this rule, which is to say we’re going to live with it in the short term, [inaudible 00:09:17] it is.

One of the things that we’re going to emphasize is that schools really can do more. And there’s some reason to believe in both this question, number seven, and also one I’ll talk about later, that OCR actually [inaudible 00:09:33] that we are going to go beyond that narrow definition of sexual harassment. Because if you sort of read this question to its logical conclusion, there’s also conduct that for one reason or another would be required to be dismissed if filed as a formal complaint, maybe in addition to these three categories’ program and activity, outside the United States, definition of sexual harassment that we could address as well. And I think what OCR is saying here is, “We expect you to think hard about not pursuing conduct of a sexual nature, even though it might not happen to meet the definition.”

The next point that OCR chose to reiterate here that I’m going to discuss is Title IX jurisdiction. So the converse of this first point, which is again, I think, intended to focus institutions on where they’re required to use these final rule procedures and where they aren’t. So they remind us that Title IX jurisdiction applies and we must apply the Title IX rule to buildings owned and operated by the institution at off-campus settings, over which we exercise substantial control. And at off-campus buildings owned or controlled by student organizations that are recognized by the institution.

I think one of the things that is sort of emblematic of what is likely to be a more active OCR under Cardona, is their recommendation in question nine that the training materials that institutions are required, of course, to both train on and post contain examples, campus-specific, institution-specific examples, of each of those examples of places where institutions’ Title IX obligations extend to.

The last area of emphasis that I’m going to focus on – and I should say, of course, the document has a number of pages and there are other examples of things that OCR has chosen to emphasize. I’m thinking of three that I think were sort of the most noteworthy – is reporting obligations. And there’s sort of two points on reporting obligations that I think are really important. And first of all, it’s notable that the Q&A to devotes six questions to reporting, more than any other topic that it discussed. And what the QA sort of digs in on is the [inaudible 00:12:04] under the final rule only “officials with authority” as designated by the university are required to report sexual harassment internally when they get knowledge of that sexual harassment.

So “officials with authority” is sort of an objective measure. What OCR says is any official who has the authority to address sexual harassment on campus has this sort of mandatory reporter status. And we can designate other people to report, by policy, but that doesn’t make them “officials with authority.”

Now, the key point for me on “officials with authority,” and I think a compliance concern for institutions, is this concept of actual notice, and how “officials with authority” come to get that knowledge, and sort of whether they’re on or off, during school hours, outside school hours. And I think that I want to emphasize here is that OCR in the final rule does not distinguish between different modes of those “officials with authority” getting actual notice. And I have seen some policies that say “officials with authority” who learned of these things sort of in the scope of their employment or “while they’re acting as a. . . .“ And I think that’s a risky approach.

Once an official with authority learns of potential sexual harassment on campus, whether they learn about it in their office, from a direct report, on the plane on the way to vacation, or in line at the grocery store, I don’t think makes a difference from a substantive perspective in terms of the standards that institutions are going to be held to. And I think OCR really sort of underscores that here. And I think it’s something that institutions ought to take a hard look at in their policies.

As I said, we have discretion to designate additional employees to report. That doesn’t make them “officials with authority” or “agents of actual notice.” And, of course, in the Q&A, OCR emphasizes that we’re not required to respond to allegations if the only employee or school official who had noticed was themselves, the alleged harasser.

So I’ve just spent the last several minutes talking about how few changes OCR made in this Q&A document with respect to what our compliance obligations are. But where, if anywhere, did OCR add compliance obligations or tweak compliance obligations? So, the first area of what I would view as new or potential clarifying guidance from the department comes with respect to what the obligations are for Title IX coordinators and when they’re required to file a formal complaint. And you’ll all recall that the way that the final rule is set up is that the sort of default case is that a complainant can report to an institution with respect to sexual harassment that they’ve experienced on campus. It may not, of course, be the complainant, it could be anybody. But after the report is made, a complainant can decide to file a formal complaint, and that will trigger an institution’s grievance procedures.

Now, in some cases, when a complainant files a formal complaint, the institution is required to dismiss that formal complaint for Title IX purposes; that occurs in situations where perhaps the complainant isn’t participating in the institution’s programs or activities – or the conduct at issue perhaps doesn’t meet the definition for sexual harassment under the final rule. Those are sort of required bases for dismissing.

So when you look at question 24 in the Q&A, it was, at least to me, a little bit of a head-scratcher. Because what 24 says is that even if a complainant isn’t participating in the recipient’s programs and activities, or could be completely unconnected to the university in any way, such that if they filed a formal complaint, the Title IX coordinator would be required to dismiss it. There are, nevertheless, circumstances where the recipient’s Title IX obligations would require the Title IX coordinator to take that same set of facts and file a formal complaint themselves. And presumably this is to protect the institution’s students from suspected harassment.

Now, this is so, and presumably governed by the Title IX regulations, even though if the complainant themselves would have brought that formal complaint, it would have to be dismissed. That’s a little odd. It’s hard to sort of wrap your mind around how this could be a rule of limited jurisdictions for a complainant, but not for the Title IX coordinator. And OCR doesn’t really explain that. I mean, you can understand from sort of a community protection perspective and from the purpose of the statute perspective, why OCR would say if you have somebody in a position of authority at the institution who has been reported to be engaging in this conduct, and yet the only complainant you have isn’t participating in the program or activity, you can’t just do nothing under Title IX.

That does make some sense, it has surface appeal. I think it’s completely irreconcilable with the rest of the regulatory scheme. Nevertheless, that’s what OCR is telling us. And so I think the takeaway here really is we need, as Title IX coordinators, to really focus on when we’re engaging in that mandatory dismissal, is there an obligation, nevertheless, to pursue something? And when you do that, are you doing it under your Title IX policies and procedures? Or are you doing it under your sort of other prohibited conduct policies and procedures, potentially your HR process?

The other thing I think that’s worth thinking about on question 24 is there’s also an implication here that perhaps this ought to be read more broadly and not only “out of program and activity” conduct might require a Title IX coordinator to act, but also that that duty might apply to in-program conduct that otherwise doesn’t meet the definition of sexual harassment or out-of-program conduct that does but is sort of being engaged in by a powerful person at the university.

I think that this question really calls into question how rigid OCR is going to be in enforcing this sort of very narrow jurisdictional limit of Title IX. I think there are some indications here, without any sort of explicit statement, that OCR is not going to follow the final rule that might get into trouble with advocates on the other side.

The next minor sort of point of departure that I want to cover is the discussion around limitations on cross-examination. I think it’s really telling here that the department doesn’t shy away from the obligation that parties at a hearing have to be subject to cross-examination in just the way that the rule requires, but focuses that inquiry on the “wellbeing” of a party during the hearing, and devotes an entire question to measures that schools can put into place to protect that wellbeing, like giving breaks to parties during the live hearing, requiring a pause each time there’s a question, to sort of take away the “ratatat” nature of the cross-examination of parties and witnesses.

And I think this goes to the department trying to sort of soften the impact of cross-examination. I mean, the department actually goes so far as to say it would be consistent with the rule to not just allow, but to require, that parties’ advisors at the hearing do no more than read a list of questions given to them by a party participant. Which strikes me as a difficult thing to enforce and something that we would get a lot of pushback from parties’ attorneys in particular. But I thought it was telling that the department said that would be OK.

The last area that sort of strikes me as perhaps not new, but a really good reminder, and one that did sort of appear in the preamble, but that I’ve had lots of conversations with clients about since final rule came out, was a reminder that anytime we’re dealing with sex-based conduct on campus, in other words conduct that’s alleged to use sex as a classification or conduct where it’s unwanted sexual conduct, even if it doesn’t rise to that level of Title IX sexual harassment, we still have obligations and those obligations go back to the basic Title IX regulation, which requires us to deal with such complaints in a prompt and equitable way. And so the department here is reminding us that if we have an allegation of sex discrimination, grade discrimination in class, exclusion from student activities on the basis of sex, all of those things are not subject to the final rule on sexual harassment, but are and remain subject to the prompt and equitable requirement that has been in place for decades in the regulations.

And finally, the most significant issues arising from the Q&A. I’m going to talk about two issues here that I think are either very hard or that we just need more information on arising out of this Q&A.

The first thing that I want to touch on here is everybody’s favorite hearing topic, which is statements. The department, in the final rule, had this hearing procedure that struck many as very odd – which is that if a party didn’t submit to cross-examination at the hearing, none of their prior statements would be admissible at the hearing, ostensibly because those statements couldn’t be tested through the greatest legal engine ever invented for finding the truth, cross-examination.

Now initially, the Q&A included four questions, which all reiterated this rule. And this was an area where I think a lot of people really thought the department could sort of soften this approach and sort of lessen the impact of, for instance, a party’s admission, which might have been dispositive of the outcome of a process during an interview, being unusable at the hearing if that party decided they didn’t want to participate in the hearing and submit to cross-examination. Instead, the department seems to have really adopted this rule, albeit while clarifying in a way that I think was really helpful, the same topic that OCR provided a blog post on last year, which is, essentially, when is a statement not a statement?

And so a prior statement by a witness, for instance, that was an assertion of fact – “I wasn’t there that night” – that’s a statement that can’t be used at cross-examination, whereas a video depicting unwelcome sexual activity, or a series of text messages that themselves constitute the stalking or the quid pro quo are not statements. They are the misconduct themselves and therefore they are not assertions of fact. And the department reiterate this in the Q&A.

The complication came when last week a district court in Massachusetts, which was hearing a challenge under the Administrative Procedures Act to the entire rule, and in the process of finding that almost the entire rule was lawful, in other words, that it was promulgated pursuant to the department’s lawful authority to issue regulations under Title IX, nevertheless, found that this “statements” rule was arbitrary and capricious.

In its analysis, the court used some pretty strong language. It said that this statement’s rule would render the most vital and ultimate hallmark of the investigation, the hearing, a “remarkably hollow gesture.” And the court went on to say that nothing in the final rule or the administrative record prevents a party from using gamesmanship and not showing up at the hearing to further a disruptive agenda. And the court, in analyzing this, essentially came to the conclusion the department didn’t provide a justification for this rule that was sufficient to address what the court viewed as a really egregious result of the rule.

Now, the court didn’t issue an injunction. It didn’t say the department is not allowed to enforce the statements rule. Instead, and I’ll read from the decision, it said, “It’s not this court’s place to strike down this section merely because it finds it manifestly unreasonable. It is, however, the court’s responsibility to ensure the department considered this necessary and likely consequence of the section, and to require the agency to provide a reasoned explanation as to why it nevertheless intended the result.”

And so basically what the court did was it sent the decision back to the Department of Education for the department to provide more information. Now, it’s all well and good for that litigation, but it doesn’t help us very much. Because we still don’t know whether or not the department is going to enforce this statements rule. And I think in the short term, it’s very difficult to know what to do. If the department gives us some guidance over the next week or so with respect to how it’s going to enforce this provision pending this ruling from the court, I think that’d be really helpful. But I think we all have some compliance issues here, which is if we stop following the statement’s rule and the parties that are aggrieved by that will file OCR complaints, and will rightly assert that this regulation is still on the books. And the parties that don’t like this statement rule will say, “Well, but this court found that the statements rule is arbitrary and capricious. We don’t think OCR can enforce it, and therefore, you’re not allowed to either.”

I think in the short term, the safest thing to do is to continue to enforce your policies as they are written, but to play close attention to this issue. Because this is obviously an issue that can have a dispositive outcome on a hearing. And, of course, the outcomes of these hearings change students’ and employees’ lives. And the stakes for them are high enough that litigation and threatened litigation are frequent. And so this is just an issue that we have to keep our eye on, and unfortunately don’t have a dispositive answer on now.

Now, the second issue that I want to talk about is actually even more vexing than that. In question number 13, OCR says something that we all knew from the prior administration, which is that the Title IX regulations are not retroactive. In other words, what the prior administration said to us was, “For conduct that occurs prior to Aug. 14, 2020, and for which there is a complaint, whenever it’s filed, you’re not obligated to follow a process compliant with the 2020 regs.”

And so some institutions decided that they’d keep their historical policies for purposes of conduct that arose prior to the regs’ effective date and use their new policies for conduct at arose after. Other institutions decided they would roll out a new policy and use that for everything, in part because the department told us that we were free to do this, just that we didn’t need to.

Well, in question 13, OCR now says that a school must follow the requirements of a Title IX statute and the regulations that were at place at the time of the alleged incident, and that the 2020 amendments do not apply to alleged sexual harassment occurring before Aug. 14, 2020. The implication of that language, of course, is that schools should be doing something different for pre-Aug. 14, 2020, conduct. But the question is, “What?” OCR references its earlier rescinded guidance from 2011 and 2014, and says that it can use this guidance to help it interpret the pre-2020 state of the regs. But of course, those documents have been rescinded, and so we’re left wondering what [inaudible 00:31:04] will apply to a process that deals with pre-regulation effective date conduct?

What troubles me here is that it stands to reason if OCR continued to think that we have the option to use our 2020 compliance policies for historical conduct, it would have said that we had that option. The last administration did. But they didn’t say that here. So they’re implying that some portion of the 2020-compliant policies may not be compliant with the prior regulations and interpretations. But they don’t tell us what part of the 2020 regulations caused that problem. And that’s really the big issue here.

I mean, recall that prior regulations don’t have any specific requirements. That’s why we had the 2001 and 2011 DCLs [Dear Colleague Letters] in the first place, so it was prompt and equitable were the only regulatory standards and everything else came out of these now rescinded guidance documents.

So this is really troubling from a compliance perspective. If we shouldn’t be using our 2020 policies for pre-August 2020, conduct, I think OCR may be suggesting here, without actually saying, that its expectation is that we’re going to stand up historical or ad hoc processes for historical allegations.

But as anybody who’s ever been involved in any sort of litigation or threatened litigation around these matters knows, this raises a whole host of issues. I mean, for private institutions, how does this square with our contractual obligations to use our written policies and procedures to adjudicate conduct that’s covered by those procedures? I mean, what about historical allegations and abuse that could be decades old? We’re used to saying, “OK, we’re going to hold students and employees to policy standards, what was sexual harassment at this time, that were in place at the time of the misconduct, but we use the current procedures that we have.”

What OCR seems to be saying here is, “No, no, no. You have to use procedures that would have been compliant procedures on the date when this conduct happened, whenever it happened.” And of course, if it was before 2011, presumably that means the Dear Colleague Letter didn’t apply. If it was after 2017, it means that the DeVos administration’s 2017 guidance document would apply, but not the regs and everything in between.

We also have federal court cases, like the now infamous RPI case, in which a federal court held that a school’s decision to use its pre-regulation process that included fewer procedural protections was, or at least could plausibly be, sex discrimination. Because the school had another policy that was already stood up that would have provided more procedural protections. This just puts schools in a really difficult position. And this is a point that I really do think the department needs to provide more guidance on, and I’m hoping that we’re going to get.

So thank you everybody for tuning in today. Anyone who is interested in reading more about that court decision from Massachusetts on the statements issue, that case is attached in the materials. And the relevant portion of the analysis goes from page 45 to page 50 of the PDF. And then the conclusion is worth reading as well. And with that, I’ll give it back to you, Hillary.

Pettegrew: And unfortunately that’s all the time we have. Josh, thanks so much for lending us your expertise on Title IX. And thank you to our audience for attending today. That concludes the webinar, and you may now disconnect.