Minors In College Programs (Response 8/13/2020)
If a 4th grader is enrolled in a college-sponsored summer camp, and is sexually harassed and complains in the college process, does the college apply live hearing and cross-examination, or use the K-12 procedures for written exchange of questions and answers?
This hypothetical lacks sufficient information to reach a definitive answer. The new Title IX Rule requires live hearings with cross-examination only for recipients that are postsecondary institutions. § 106.45(b)(6)(i). For all recipients that are not postsecondary institutions, hearings are allowed, but never required. § 106.45(b)(6)(ii). The term “postsecondary institution” is a defined term under § 106.30(a).
The Preamble to the Final Rule contemplates that some education programs or activities that are affiliated with postsecondary institutions, but do not themselves constitute a “postsecondary institution,” will not be subject to § 106.45(b)(6)(i), but would instead be subject to § 106.45(b)(6)(ii). For instance, the Preamble to the Rule states at page 1538: “Academic medical centers are not postsecondary institutions, although an academic medical center may be affiliated with a postsecondary institution or even considered part of the same entity as the postsecondary institution. Through this revision the Department is giving entities like academic medical centers greater flexibility in determining the appropriate process for a formal complaint.”