1. Title IX Proposed rules– AN overview Erin Gould and Karen Smith
PACE Day
April 18, 2019

2. What is Title IX
Applies to K-12 schools, community colleges, and universities.
Institutions are required to ensure that all students are able to participate in a college’s programs and activities regardless of their sex.
Requires institutional action and creates potential institutional liability.

3. Proposed Regulations
Published on November 29, 2018 in Federal Register - 60 days for public comment
Public comment closed at end of January 2019; Expect Summer 2019 implementation at earliest
American Council on Education coordinated comments on behalf of higher education national organizations
American Association of Community Colleges also submitted comments with community college focus
OCCA – 17 college response was submitted

4. Major Changes to Title IX Procedures
Definition of Sexual Harassment
Actual Knowledge/Notice
Off-Campus Incidents
Institutional Response to Reports
Formal Complaints
Response even if no formal complaint – supportive measures
Due Process Requirements

5. Definition of Sexual Harassment
Narrowed definition limited to mean any of the following:
College employee requires unwanted sexual conduct in exchange for educational benefit or service (quid pro quo harassment),
Unwelcome conduct on basis of sex that is “so severe, pervasive, and objectively offensive” that in effect denies access to educational benefit or service,
“Sexual Assault” as crime defined in Clery Act.

6. Actual Knowledge/Notice
Response by institution required only if there is “actual knowledge” of sexual harassment or allegations
By college employee “who has authority to take corrective action”
Report to Title IX coordinator – always notice
Effectively eliminates mandatory “responsible employee” concept – 2011 guidance

7. Off-Campus Incidents Only incidents occurring in U.S. are covered
There may be obligation for off-campus incidents if within the college’s own education program or activity
Geography not necessarily determinative
But if no relationship to college education programs or activity, then no requirement for investigation

8. Institutional Response to Reports
Formal Complaints
Filed by complainant or Title IX Coordinator
Highly proscribed process
Standard of review – “clear and convincing evidence” vs “preponderance of the evidence”
Includes employees and students
Informal and “Supportive Measures”
Must respond to reports even if no formal complaint
Similar to “interim measures”

9. Due Process Requirements
Presumption of non-responsibility throughout process
Objective evaluation of all relevant evidence
Burden of proof on institution, not parties
No single investigator model
Requirement for live hearing
Advisor
Cross examination
Equal access to review evidence
Written determination to both parties

10. Next Steps
U.S. Department of Education reviewing comments, preparing responses and finalizing rules
Timeline not determined yet; Summer 2019 possible
OCCA participate in Oregon Department of Justice work group on changes to state law after rules are finalized
2019 Oregon legislative action – HB 3415
Current Congressional action – Higher Education Act reauthorization

11. Oregon Legislature – HB 3415
Retains existing campus best practices related to sexual assault and sexual harassment
Adds requirement to have written policies related to sexual harassment, sexual assault, domestic violence, dating violence, and stalking to Oregon law
Includes on campus and off campus incidents
Codifies annual training requirements for Title IX coordinators and other involved in these complaints
Applies to academic year

12. Congressional Action – HEA Reauthorization
Senate Health, Education, Labor and Pensions Committee Hearing – April 2, 2019
Chair Alexander and Ranking Member Murray pledge bi-partisan approach to reauthorize Higher Education Act by end of year
3 Areas of Concern:
Cross examination requirement;
No obligation to investigate incidents of alleged sexual misconduct that occur off campus;
Definition of, or amount of evidence needed to prove, sexual harassment is too difficult a standard to meet.

13. Resources
Title IX of the Education Amendments of 1972 Notice of Proposed Rulemaking
U.S. Department of Education Proposed Title IX Regulation Fact Sheet (PDF)
Department of Education's Background & Summary of the Proposed Ti​tle IX Regulation (PDF)
American Association of Community Colleges Summary
ACE Comments on Proposed Rules
AACC/ACCT Comments on Proposed Rules

14. Erin Gould Karen Smith Attorney At Law 800 Willamette St., #530
Contact Us
Erin Gould
Attorney At Law
800 Willamette St., #530
Eugene, OR 97401
Karen Smith
OCCA General Counsel
260 13th Street
Salem, OR 97301