On May 6, 2020, the U.S. Department of Education issued its long-awaited final rule amending the Title IX regulations. Title IX of the Education Amendments of 1972 applies to all public and private K-12 schools and post-secondary institutions that receive federal funding. While Title IX and the corresponding regulations have provided protection for students to access education free from discrimination on the basis of sex, the amended regulations seek to provide additional protections and due process rights with regard to complaints of sexual harassment. The regulations take effect August 14, 2020.
As K-12 schools plan for the start of the 2020-2021 school year, it is important to be aware of some of the key changes:
- The regulations specifically define “sexual harassment,” including three types of sexual misconduct: (1) a school employee conditioning an educational aid, benefit, or service upon an individual’s participation in unwelcome sexual conduct (i.e., quid pro quo harassment); (2) any unwelcome conduct that a reasonable person would find to be so severe, pervasive, and objectively offensive that it effectively denies the person equal access to the school’s education program or activity; and (3) any instance of sexual assault, dating violence, domestic violence, or stalking as defined in applicable federal law.
- K-12 schools will be deemed to have notice if sexual harassment is reported to any employee. This “actual knowledge” of sexual harassment, or an allegation of sexual harassment, triggers the school’s duty to respond.
- Schools must respond when sexual harassment occurs in the school’s “education programs or activities” in the United States. This includes the school’s physical location and buildings, as well as events and circumstances over which the school exercises substantial control. This may include field trips, off-campus school-sponsored events, school buses, and other activities/locations such as class trips.
- Schools must continue to designate a Title IX Coordinator to coordinate efforts and compliance with Title IX. Notice of the Title IX Coordinator and his/her contact information (including name, office address, phone number, and email address) must be posted on the school’s website and provided to students, parents/guardians, employees, applicants for admission and employment, and all unions. The Title IX Coordinator is responsible for education, notice requirements, investigations, and coordination of supportive measures.
- While any person may report sexual harassment at any time in person, by mail, by telephone, or by email to the Title IX Coordinator or any K-12 school employee, the regulations make clear that only the alleged victim (the “Complainant”) or the Complainant’s parent/guardian may file a formal complaint, or the Title IX Coordinator may sign the formal complaint. The “formal complaint” is a document filed by a Complainant or signed by the Title IX Coordinator alleging sexual harassment against a Respondent and requesting that the school investigate the allegation of sexual harassment. In all cases, only the alleged victim is to be identified as the “Complainant” and the alleged perpetrator as the “Respondent.”
- The regulations set forth mandatory response obligations when sexual harassment is reported and require schools to follow a prescribed grievance process for resolving formal complaints of sexual harassment. In sum, the regulations create a new structure for responding to and investigating complaints of sexual harassment that require new responsive actions (even if no formal complaint is filed); notice to both the alleged victim and perpetrator; new notice of and access to evidence for both parties; new standards for assessment of relevant evidence; and timelines and procedures for reports, decision-making, and appeals. K-12 schools are not required to hold in-person hearings but must allow both parties opportunities for written cross-examination and to respond in writing to relevant evidence and findings. The decision-maker cannot be the same person as the Title IX Coordinator or the investigator, and the person or body deciding an appeal cannot be the Title IX Coordinator, investigator, or decision-maker.
- The regulations establish new requirements for staff training. All employees must receive training on Title IX and their reporting obligation upon receiving notice of a complaint. Title IX Coordinators, investigators, decision-makers, and persons deciding appeals also must be trained on response requirements, investigation and decision-making procedures, resolution processes, impartiality and issues of relevancy, and other aspects of the grievance process. All materials used to train Title IX personnel must be posted on the school’s website, if any, or available for members of the public to inspect.
- The regulations set forth that schools must respond promptly to sexual harassment under Title IX in a matter that is not “deliberately indifferent,” which means that the response is not clearly unreasonable in light of the known circumstances. This is the standard OCR is now to use when assessing complaints of mishandling sexual misconduct by schools.
In addition to the above summary, additional resources are available on the U.S. Department of Education’s webpage regarding the release of the Final Regulations, including a brief overview and a summary of the major provisions of the amended regulations.
Schools can begin to prepare for implementation of the amended Title IX regulations in a number of ways:
- Update key stakeholders on the amended Title IX regulations and what it will mean for your school district. Stakeholders may include your school board and district- and building-level administrators.
- Identify who will be part of the team to review and update your school district’s policies and procedures. The district’s nondiscrimination policy must be prominently displayed on the district’s website and must include notification to students, parents/guardians, employees, applicants, and others that Title IX requires the school not to discriminate on the basis of sex and that the school does not discriminate.
- Note: School districts that subscribe to the IASB PRESS policy service can expect policy updates incorporating the amended Title IX regulations this summer.
- Identify who will serve as your Title IX Coordinator. Although not required, best practice is to identify both a female and male coordinator so complainants can report to a Title IX Coordinator of either gender. This approach also allows for an additional trained staff member to receive and assist with responding to reports and conducting investigations if a formal complaint is filed.
- Identify who will serve in the key roles in the grievance process, including but not limited to investigator, decision-maker, and person(s) who decide appeals. More than one individual in the school district likely will need to be identified for each role.
- Begin to consider methods and types of training for staff. Given the unknown status of how and when schools will reopen for the 2020-2021 school year, consider how to incorporate training into planned activities for staff in August. Remember that training materials have to be posted on the district’s website or made available for public inspection.
- Note: The requirement to post training materials on the district’s website may raise copyright issues if the district uses materials from an outside organization, firm, or consultant. OCR, in a recent blog post, makes clear that the district must secure permission for the use of copyright materials. If it cannot, the district must create or obtain alternative materials that can be posted on the website. In addition, school districts will need to consider how to provide sexual harassment training for employees that aligns with both the amended Title IX regulations and the recently issued Illinois Department of Human Rights requirements (see our article here).
- Identify how information about sexual harassment policies and procedures is currently communicated to students, parents/guardians, employees, and other stakeholders, whether via student handbooks, newsletters, websites, or other methods. This will allow for the district to more quickly update these items and distribute them once policies and procedures are updated. If your district is in the process of updating its student handbook now, consider what minimal changes can be incorporated at this time, and know that updates will need to be provided later.
Please contact any attorney in our Students/Special Education practice group with questions regarding Title IX and complying with the new requirements in the amended regulations.