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

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.

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

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

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.

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

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

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”

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

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

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 20-21 academic year

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.

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

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 541.485.1088 Erin@eringouldlaw.com Karen Smith OCCA General Counsel 260 13th Street Salem, OR 97301 541.740.4626 ksmith@occa17.com