Federal Government and New York State Issue New Guidance on Title IX
Today, more than ever before, higher education lawyers are focusing their attention on issues of sexual harassment and sexual assault under Title IX of the Educational Amendments of 1972. Title IX protects people from sex discrimination in educational programs and activities at institutions that receive federal financial assistance. Since 2011, when the U.S. Department of Education’s Office for Civil Rights issued a “Dear Colleague Letter,” reminding colleges, universities and schools around the country of their obligations with respect to sexual harassment, sexual violence, and Title IX, educational institutions have dramatically restructured their internal disciplinary proceedings and reporting procedures. In the face of federal and state government scrutiny, and numerous high profile news stories regarding sexual harassment and sexual violence on college campuses, educational institutions find themselves confronting a complex and rapidly changing legal landscape.
Both the U.S. Department of Education and Department of Justice provide online access to comprehensive resources regarding Title IX, including two recent sources of information. In April, the Office for Civil Rights issued guidance regarding the role of mandatory Title IX coordinators at educational institutions, including a “Title IX Resource Guide” which summarizes Title IX and institutions’ obligations thereunder. In August, the Department of Justice launched the Center for Changing Our Campus Culture: An Online Resource to Address Sexual Assault, Domestic Violence, Dating Violence and Stalking. The site acts as a clearinghouse for resources regarding compliance with Title IX and the Clery Act, and provides access to training materials, suggested campus policies, and research and curricula that colleges and universities can use to ensure compliance.
In addition, New York Governor Andrew Cuomo signed his “Enough is Enough” legislation into law in July. This comprehensive bill, which applies to private colleges in New York State, creates a uniform definition of affirmative consent for sexual activity, defining consent as a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. The act imposes a series of new requirements on private colleges, requiring them to establish an amnesty policy to ensure that students reporting incidents of sexual assault or other sexual violence are granted immunity for certain campus policy violations, such as drug and alcohol use, and to create a students’ bill of rights to specifically inform sexual violence victims of their legal rights and how they may access appropriate resources. Among other things, the act also imposes training requirements for administrators, staff, and students, and new reporting obligations, and establishes a new sexual assault victims unit within the State Police.