The 13 Major Provisions of Title IX’s Final Rule

After years of debate, the U.S. Department of Education’s (ED) new Title IX regulations took effect in August. ED’s final rule details the responsibilities of schools that receive federal funds in responding to allegations of sexual assault and harassment.

Along with Title IX coordinators, all leaders at postsecondary education institutions should be well-versed in the final rule. ED has released several documents on the rule, as well as a summary of 13 major provisions.

For this article, here is a quick rundown of the provisions for postsecondary institutions, but we also highly recommend reading the full summary from ED here.

1. Notice to Schools: The final rule allows the institution to choose whether to have mandatory reporting for all employees, or to designate certain employees to be confidential resources for students to discuss incidents without automatically triggering a report to the Title IX office. Notice to a Title IX coordinator or an official with authority to institute corrective measures on the recipient’s behalf charges the institution with actual knowledge and triggers response obligations.
2. Definition of Sexual Harassment for Title IX Purposes: Sexual harassment is defined as three types of misconduct on the basis of sex: 1) Any instance of quid pro quo harassment by a school’s employee; 2) Any unwelcome conduct that a reasonable person would find so severe, pervasive and objectionably offensive that it denies a person equal educational access; 3) Any instance of sexual assault (as defined in the Clery Act), dating violence, domestic violence, or stalking (as defined in the Violence Against Women Act).
3. Harassment in a School’s Education Program and in the U.S.: Schools must respond when the harassment occurs in the school’s educational program or activity that receives Federal financial assistance against a person in the U.S. ED acknowledges “program or activity” has a broad definition and says it will continue to look into these definitions.
4. Accessible Reporting: The final rule expands a school’s obligations to ensure its educational community knows how to report to a Title IX coordinator, including by offering multiple ways to report incidents and displaying information prominently on websites.
5. Mandatory Response Obligations — The Deliberate Indifference Standard: Schools must respond promptly to harassment in a manner that is not deliberately indifferent (a response that is not clearly unreasonable in light on the known circumstances). See the full document for a breakdown of this standard.
6. Mandatory Response Obligations — Definitions: The final rule provides definitions of “complainant,” “respondent,” “formal complaint” and “supportive measures.” These help people understand how schools must respond in a way that supports the alleged victims and treats all parties fairly.
7. Grievance Process, General Requirements: The final rules details a thorough grievance process to resolve complaints. Importantly, Title IX personnel must be trained on relevant issues, including the final rule’s definitions of harassment.
8. Investigations: Schools must investigate allegations in any formal complaint and send written notice to complainant(s) and respondent(s). From that point, the final rule describes a long list of responsibilities regarding how a school must interact with the parties, including further notifications and privacy rights.
9. Hearings: The new Title IX rule added provisions to the “live hearing with cross-examination” requirement for postsecondary institutions. The grievance process must offer the opportunity for these hearings, which come with a number of rules.
10. Standard of Evidence & Written Determination: Schools’ grievance processes must state whether they will use the “preponderance of evidence standard” or “clear and convincing evidence standard” to determine responsibility. Written determinations by the decision-maker (who is not the Title IV coordinator or investigator) must be sent simultaneously to the parties, along with appeal information.
11. Appeals: Schools must offer both parties an appeal from the determination or dismissal of a formal complaint on the following bases: procedural irregularity that affected the outcome of the matter, newly discovered evidence that could affect the outcome, and/or Title IX personnel has a conflict of interest or bias.
12. Informal Resolution: A school, in its discretion, can choose to offer and facilitate informal resolution options, such as mediation or restorative justice, as long as both parties give voluntary, informed, written consent. This cannot be done regarding allegations that an employee harassed a student.
13. Retaliation Prohibited: The final rule expressly prohibits retaliation and describes what does and does not constitute retaliation. Complaints alleging retaliation must be filed according to the school’s prompt and equitable grievance procedures.

While our focus is regularly on institutions’ well-being from a Title IV standpoint, we understand Title IX has a wide impact on schools and students, and we encourage everyone to become educated on the final rule.