Defining Sexual Harassment on Campus in the Proposed Title IX Regulations (Part 2)

This is the second article in a series addressing the newly proposed Title IX regulations, published by the U.S. Department of Education on November 16, 2018, intended to address institutional procedures for investigating and resolving complaints of sexual harassment and sexual assault in educational institutions funded by the federal government. The proposed rules, set forth in a notice of proposed rulemaking (“Title IX Notice”), have been roundly criticized in many quarters, particularly with respect to the narrow definition of sexual harassment put forth by Secretary Betsy DeVos. This article will address the definition in the proposed Title IX rules and a number of critiques of the definition in comments to the proposed rules.

Sexual harassment and assault of students is generally acknowledged to be a widespread problem. According to a study cited in the January 30, 2019 comments submitted by the American Civil Liberties Union (“ACLU Comments”), undertaken by the Association of American Universities, a survey of several campuses found that over 26 percent (more than one quarter) of undergraduate women who responded to the survey reported experiencing nonconsensual sexual contact involving physical force or incapacitation, and nearly 62 percent (more than one half) of those responding reported experiencing sexual harassment. (It should be noted that there is skepticism about the study. One noted commentator in the field, Emily Yoffe, writing in Slate on September 24, 2015, questioned the accuracy of the study due to the low percentage of students responding, suggesting, among other things, that study participants were more likely than others to have been the subject of assault or harassment.)

Whatever the precise magnitude of the problem, however, there is no doubt that sexual assault and harassment on campus needs to be addressed effectively and fairly. A key component of any attempt to address the problem on campus is defining it.

A. Definition of Sexual Harassment under the Obama Guidance

The Department of Education under the Obama administration attempted to address sexual harassment and assault on campus by an April 4, 2011 “Guidance”—which broadly defined sexual harassment to encompass everything between unwanted verbiage through rape. Thus, the Guidance stated that “sexual harassment is unwelcome conduct of a sexual nature,” which includes “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature,” including “sexual violence.” The Guidance continued: “[W]hen a student sexually harasses another student, the harassing conduct creates a hostile environment if the conduct is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program.”

There was widespread criticism of this definition as overly broad. As stated in our previous article in the series, Ms. Yoffe was concerned that this standard could “potentially include virtually any sexual encounter— from behavior that could meet the criminal definition of rape, to jokes and unwanted flirtation.” In a “Law Professors’ Open Letter regarding Campus Free Speech and Sexual Assault,” dated June 1, 2016, the signatory professors cited Davis v. Monroe, 526 U.S. 629 (1999), where the U.S. Supreme Court had defined sexual harassment narrowly in the context of establishing civil liability under Title IX  as conduct which is “severe, pervasive, and objectively offensive.” The professors contended that the broader standard under the Obama Guidance led to situations where a university was required to condemn single acts of bullying as sexual harassment, or where a university was forced to define as sexual harassment any unwelcome verbal communication of a sexual nature (thereby threatening free speech on campus). As stated in our prior article, one of the early acts of the Department of Education under Secretary DeVos was to withdraw the Obama Guidance and attempt to narrow the scope of campus investigations of sexual harassment.

B. Definition of Sexual Harassment in the Title IX Rules Proposed by Secretary DeVos

The rules on Title IX proposed by Secretary DeVos take a different approach than the Obama Guidance to defining the problem by creating three separate categories of wrongful conduct: sexual assault, quid pro quo demands (demanding sexual conduct in exchange for aid or benefit) and sexual harassment. The proposed rules considerably narrow the definition of the last category, “sexual harassment,” to match the standard for civil liability set forward in Davis v. Monroe. Thus, Proposed Rule § 106.30 defines sexual harassment as: “(1) [a]n employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct; (2) [u]nwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or (3) [s]exual assault, as defined in 34 C.F.R. § 668.46(a) [regulations under the Clery Act, defining prohibited types of sexual assault].” Additionally, Proposed Rule § 106.45(b)(3) attempts to prohibit educational institutions from pursuing complaints of sexual harassment that fail to meet the proposed standard, stating: “If the conduct alleged by the complainant would not constitute sexual harassment as defined in section 106.30 even if proved . . . the recipient must dismiss the formal complaint with regard to that conduct” without any investigation.

C. Critiques of the Proposed Definition of Sexual Harassment

A cogent critique of the proposed definition of sexual harassment is contained in the ACLU comments to the proposed rules (a number of which comments were made by other commentators as well).

First, the proposed definition narrowly limits harassment to conduct that is “severe, pervasive, and objectively offensive” (emphasis added). The ACLU noted that there is no principle of law which requires that the Department of Education adopt the civil liability standard set forth by the U.S. Supreme Court, and that this proposed standard excludes conduct that “should trigger an obligation to respond”— including (1) “severe” conduct which is not “pervasive” or (2) “pervasive” conduct which is not “severe.” (The ACLU used a single threat of rape as an example of the former and ongoing harassing conduct or unwanted sexual remarks as an example of the latter). It should be noted that the comments to the proposed rules from Letitia James, the Attorney General of the State of New York, submitted January 30, 2019, raise this very same concern.

Second, the proposed definition reaches only conduct that “effectively denies” access to education altogether, rather than “limiting” a student’s access to education. As noted in the ACLU Comments, regulations previously issued under Title IX have always recognized that recipients violate Title IX when they “[d]eny any person any … aid, benefit, or service” or “limit any person in the enjoyment of any right, privilege, advantage, or opportunity.” As a practical matter, under the new proposed rules, the conduct complained of would have to effectively drive a student from the institution— and would ignore serious harassment which “only” severely affects a student’s emotional state or impedes the student’s access to a stable educational environment.

Third, the proposed regulations would actually prohibit schools from investigating complaints of sexual harassment which did not fall within the limited definition of sexual harassment adopted from Davis v. Monroe. This would be the case even if the harassment charged violated the school’s own internal code of conduct.

These criticisms of the rules are well taken. The ACLU recommends that in place of the Department of Education’s proposed definition of sexual harassment, that an alternative be adopted: “unwelcome conduct of a sexual nature that is sufficiently severe or pervasive to deny or limit a student’s ability to participate in or benefit from the school’s program based on sex.” This standard is better defined that that of the Obama Guidance and would also improve upon the proposed Title IX regulations by better capturing more of the wrongful conduct that schools should be charged with addressing.

Moreover, the ACLU urges the Department to modify the proposed rule to permit (but not require) a university to investigate all “non-frivolous” charges of sexual harassment even if the charge does not immediately match the definition in the rule, or if the sexual harassment as charged violates the school’s own internal code of conduct. This too makes a great deal of sense. It should be noted that the comments of the Association of American Universities, in its comments of January 24, 2019, echoed this sentiment, stating that “because of universities’ expertise in these matters,” they should be “free to pursue investigations of behavior beyond the minimum requirements laid out by the [Department of Education’s proposed rules]…”

In our upcoming articles we will address additional specific proposals and representative responses from commentators.

Other articles in this series:
• The Controversial Proposed Title IX Regulations Addressing Sexual Assault on Campus (Part 1)
• The Proposed Title IX Regulations on Reporting Sexual Harassment and Assault on Campus (Part 3)
• The Proposed Title IX Regulations on Live Hearings and Cross-Examination (Part 4)
• The Proposed Title IX Regulations on Evidentiary Burdens of Proof (Part 5)

This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon. We would be pleased to consider providing additional details or advice about specific situations. For additional information on this topic, please feel free to contact Mark H. Moore, who regularly counsels and litigates for clients in connection with sexual harassment and discrimination claims. As part of RPJ’s robust employment practice, the firm offers both in-person and online sexual harassment prevention training programs for employers and universities. More information can be found on our Training Programs page.