THE NEW TITLE IX RULE: EXCLUDING RELIANCE ON A PARTY’S “STATEMENTS” WHEN THE SEXUAL HARASSMENT AT ISSUE CONSISTS OF VERBAL CONDUCT
May 22, 2020
The new Title IX Rule becomes effective August 14, 2020. OCR will not enforce the new Rule until the Rule has become effective, and provides this information to assist recipients in preparing to comply with the new Rule.
The Title IX Rule has been published in the Federal Register. Additional information about the Rule can be found on OCR’s website here. Citations below are to the unofficial version of the Rule and its preamble, located on OCR’s website here.
Under the new Rule, postsecondary institutions must hold a live hearing after which the decision-maker must evaluate all relevant evidence (both inculpatory and exculpatory), and reach a determination regarding responsibility. See § 106.45(b)(6)(i), § 106.45(b)(1)(ii), § 106.45(b)(7). The Rule also states the following:
Section 106.45(b)(6)(i) (emphasis added).
One question that a postsecondary institution may have is whether not relying on a party’s statement—because that party has not submitted to cross-examination —means not relying on a description of the words allegedly used by a respondent if those words constitute part of the alleged sexual harassment at issue.
The answer to that question is “no,” and to walk through this issue further, we reference a few excerpts from the Department’s preamble to the Rule.
At page 1179 of the preamble to the Rule, the Department explains that the prohibition on relying on the statements of a party or witness who does not submit to cross-examination is designed to protect the truth-seeking purposes of the process:
Additionally, at page 1181 of the Preamble to the Rule, the Department clarifies that the term “statements” in § 106.45(b)(6)(i) does not apply to evidence that does not constitute a person’s intent to make a factual assertion:
Throughout the Rule, the Department acknowledges that speech, when not protected under the U.S. Constitution, may constitute actionable sexual harassment when the misconduct consists of any one or more of the categories of misconduct defined as “sexual harassment” under § 106.30, even when speech is part of the misconduct at issue. See, for example, the Preamble at: p. 426 footnote 625; p. 474 footnote 680; pp. 497-98; p. 498 footnote 710; p. 502 footnote 726.
Thus, a respondent’s alleged verbal conduct, that itself constitutes the sexual harassment at issue, is not the respondent’s “statement” as that word is used in § 106.45(b)(6)(i), because the verbal conduct does not constitute the making of a factual assertion to prove or disprove the allegations of sexual harassment; instead, the verbal conduct constitutes part or all of the underlying allegation of sexual harassment itself.
For example, where a complainant alleges that the respondent said to the complainant: “If you go on a date with me, I’ll give you a higher grade in my class,” and at the postsecondary institution’s live hearing, the respondent does not submit to cross-examination, then § 106.45(b)(6)(i) does not preclude the decision-maker from relying on the complainant’s testimony that the respondent said those words to the complainant. The words described by the complainant, allegedly attributed to the respondent, are themselves the misconduct that constitutes sexual harassment under § 106.30 (i.e., a recipient’s employee conditioning an educational benefit on participation in unwelcome sexual conduct, often referred to as quid pro quo harassment) and are not the respondent’s “statement” (i.e., the respondent’s intent to make a factual assertion).