What You Need to Know About the New Title IX Regulations

“The new regulations address two broad categories of institutional obligations. The first is jurisdictional: When does a university have a responsibility, under Title IX, to take action? The second is substantive: When a university does take action, what must it do? 

In terms of when a university must take action, the new regulations use a speech-protective definition of sexual harassment that mirrors the definition established by the Supreme Court in Davis v. Monroe County Board of Education (1999). Under the new rules, hostile environment sexual harassment is defined as “unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.” This is a critically important provision because the previous administration had employed an overly broad definition—”any unwelcome conduct of a sexual nature”—that led students and faculty to be punished for speech and expression protected by the First Amendment. The regulations also make clear that Title IX prohibits physical sexual misconduct such as sexual assault, dating violence, domestic violence, and stalking.

The new regulations also make clear that universities must respond to any sexual harassment that takes place “in the school’s education program or activity.” This includes not only incidents that occur on school grounds, but also incidents that occur in contexts where the university has “substantial control,” including in buildings owned or controlled by recognized student organizations (such as fraternity houses.) 

The regulations also contain a lot of information about how schools must conduct their Title IX grievance procedures. While Title IX has long required a “prompt and equitable” process, colleges’ handling of these cases in recent years has been anything but equitable. Ever since the 2011 Title IX Dear Colleague letter—which eliminated important procedural protections for the accused and ushered in an era of aggressive federal investigations that led schools to abandon even more due process protections—students have been forced to defend themselves in biased, inquisitorial proceedings, often with little to no information about what they allegedly did wrong.”

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