On May 6, 2020, the U.S. Department of Education issued final regulations that will govern Title IX investigations and adjudications. These regulations are contained in 34 CFR 106 and are to become effective on August 14, 2020. Among these new regulations are specific requirements as to what an educational institution must include in a written notice of allegations provided to the parties after it receives and processes a formal complaint that alleges that a respondent has sexually harassed a complainant in a manner which constitutes discrimination on the basis of sex under Title IX (34 CFR 106.45(b)(2)).
These new regulations mandate that educational institutions provide the Title IX parties (complainant and respondent) written notice of allegations of sexual harassment, which notice must contain the following:
- Sufficient details (known at the time) to allow the respondent to prepare a response prior to any initial interview. Sufficient detail must include the identities of the parties involved in the alleged incident, the specific conduct allegedly constituting sexual harassment (under U.S. Department of Education regulations), the date of the incident and the location of the incident;
- Sufficient time for the respondent to prepare a response to the allegations prior to any initial interview;
- A “statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process (34 CFR 106.45 (b)(2)(i)(B));
- Notice to the parties that they have the right to have an advisor which may be, but is not required to be, an attorney;
- Notice that the parties may inspect and review evidence as part of the investigation that is directly related to the allegations set forth in the formal complaint;
- Notice to the parties of any provisions in the educational institution’s code of conduct which prohibits “making false statements or knowingly submitting false information during the grievance process.” (34 CFR 106.45(b)(2)(i)(B)(0).
The new regulations also require educational institutions to provide notice of additional allegations to the parties if, during the course of the investigation, the educational institution’s Title IX investigators decide to investigate allegations against the complainant or respondent which are not included in the initial written notice of allegations.
The apparent purpose of these new regulatory notice requirements is to ensure that the parties to a Title IX investigation be provided a detailed description of what is being alleged and some of their rights throughout the investigatory process (such as the right to inspect and review evidence directly related to the allegations). Hopefully, this notice will allow parties to a Title IX grievance process to make their cases in a thorough, careful, knowledgeable and professional manner.
These new regulations regarding required notice of allegations to Title IX parties are consistent with previous guidance provided by the Office of Civil Rights (OCR) in September of 2017. Despite these requirements for adequate specificity, it has been our experience that notice provided by educational institutions is often inadequate, in that the notice provided often does not provide enough information to learn precisely what is being alleged and how said allegations constitute a violation of the institution’s code of conduct. For this reason, we often request, in writing, enhanced details of the charge (or allegations). Such knowledge is critical to understanding exactly what is being alleged and, quite often, forms the basis to defending charges which are not supported by the evidence.
Having the right advisor will be critical to ensuring that an individual charged with sexual misconduct receives all the rights that individual is entitled to. Parisi, Coan & Saccocio, PLLC is dedicated to making sure that the individuals they represent receive all the rights they are entitled to under the law.