New Title IX Regulations: What Do They Mean for Greek Life?

 Micah Kamrass, Fraternal Law Partners, mkamrass@fraternallaw.com

On May 6, 2020, the United States Department of Education announced the much-anticipated new Title IX Regulations, which become effective on August 14, 2020. These regulations apply to all schools, public and private, that receive federal funding, which is includes all but a small handful of colleges and universities.

Most broadly, the new regulations place the onus on an institution of higher education to act when it has actual knowledge of sexual harassment that occurred within the school’s educational program or activity against a person in the United States.

The regulations dramatically narrow the previously wide geographic area in which a Title IX violation could have occurred. Now, the Regulations only apply to conduct “on campus and in educational activities off-campus such as college sponsored trips and events at off-campus, privately owned housed of recognized fraternities and sororities.”

This new limitation seems to explicitly exclude conduct at the facilities of fraternities and sororities that operate independently and without college or university recognition.

The Regulations also address the issue of conduct by members of a fraternity or sorority outside of their privately-owned facility. The regulations state:

“Where a postsecondary institution has officially recognized a student organization, and sexual harassment occurs in an off campus location not owned or controlled by the student organization yet involving members of the officially recognized student organization, the [institution]’s Title IX obligations will depend on whether the [institution] exercised substantial control over the respondent and the context of the harassment, or whether the circumstances may otherwise be determined to have been part of the “operations of” the [institution].”

The ambiguity that exists within this statement will likely present challenges for colleges and universities as well as for fraternities and sororities in the coming months.

The new Regulations also conform with many recent federal court decisions about what type of process is due in a Title IX investigation. They clarify that the accused have the right to receive written notice, the right to an advisor who can be an attorney, the right to adequate time to prepare a defense, the right to all evidence both exculpatory and inculpatory, and the right to review the investigation report.

Due process in Title IX now also includes the right to live hearings (which can be virtual and also can be with parties in separate rooms if requested). Perhaps most interestingly, Due process in Title IX now also includes the right to cross-examination conducted by an advisor/attorney.

Fraternal Law recently led an in-depth webinar on the new Regulations. If you would like to receive a recording of the webinar please email MKamrass@ManleyBurke.com. We suspect these new Regulations will have a major impact and result in substantial changes at colleges and universities this fall.