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Title IX and Sexual Harassment: Key Considerations as the Department of Education Moves Closer to Adopting New Regulations

The United States Department of Education recently closed the public comment period for its proposed Title IX regulations, and school boards and administrators must be ready for significant changes in the coming months.  The regulations, while not yet finalized, will replace existing guidance from the Office for Civil Rights regarding in the investigation and remediation of sexual harassment in educational programs or activities.  School boards and administrators should therefore be prepared to revise their sexual harassment policies and procedures to comply with the regulations, which will be no simple task in light of the proposed changes.

School boards and administrators are strongly encouraged to examine the proposed Title IX regulations and related materials in full and consult with attorneys regarding revisions to their policies and procedures.  The following highlights from the regulations, as originally proposed, are offered as a primer in the meantime:

  • Defining sexual harassment.  The proposed Title IX regulations will narrow the existing definition of sexual harassment to any of the following:
    1. An employee of [the school board] conditioning the provision of an aid, benefit or service of [the school board] on an individual’s participation in unwelcome conduct (“quid pro quo”);
    2. Unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to [the school board’s] education program or activity (“hostile environment”); or
    3. Sexual assault, as defined in existing federal regulations.
  • Remember, while a hostile environment typically requires more than one instance of unwelcome conduct, even a single incident of quid pro quo harassment or sexual assault could constitute sexual harassment under the proposed definition.
  • The standard of knowledge.  Under the proposed regulations, a school board will need “actual knowledge” of sexual harassment in an educational program or activity in order for its response to be scrutinized.  A school board will have such knowledge if sexual harassment is reported to a K-12 teacher, Title IX coordinator, or official with authority to take corrective action.
  • The investigation requirement.  School boards will have to investigate every formal complaint of sexual harassment.  A meaningful response will be required for every known report of sexual harassment, even if a reporter does not want to make a formal complaint.  A school board will violate Title IX if it is “deliberately indifferent” in its response to alleged sexual harassment, which means that the response was “clearly unreasonable” in light of the known circumstances.  By contrast, a school board will not respond with deliberate indifference if it follows its policies and procedures in response to a formal complaint of sexual harassment.
  • Grievance Proceedings.  If an investigation of sexual harassment is substantiated, the accused student or respondent will be entitled to a formal or informal hearing wherein the school board must prove that the harassment occurred.  School boards may adopt a stricter “clear and convincing evidence” standard of proof, or keep the existing “preponderance of the evidence” standard if it is also used for other code of conduct violations with the same maximum disciplinary sanctions.  Significantly, the proposed regulations include a lengthy list of rights which must be afforded to complainants and respondents alike.  These rights include, but are not limited to, access to pertinent records, the opportunity to present evidence and examine witnesses, and to consult with an “advisor” of one’s choice.
  • Remedies.  School boards must provide appropriate remedies to restore or preserve a complainant’s access to educational programs or activities, regardless of the outcome of any grievance proceedings.  The proposed regulations include a nonexhaustive list of “supportive measures” which may be made available to complainants and respondents at any stage of the process, such as leaves of absence, no-contact orders, changes to class schedules, and counseling.  In cases where remedies or supportive measures are required, school boards must ensure that they are provided on an individualized basis instead of using a “one size fits all” approach.
  • Training and recordkeeping.  School boards will have to provide training to Title IX coordinators, investigators, and other decision-makers regarding the definition of sexual harassment and the investigatory and grievance processes.  The proposed regulations will also require school boards to create and maintain records documenting all Title IX sexual harassment investigations, which may be accessible to complainants and respondents.

Attorneys at Berchem Moses PC are available to consult boards of education regarding regular and special education matters, including Title IX investigations, in the State of Connecticut.  For further information, please contact Attorney Michelle Laubin at [email protected]