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U.S. Department of Education Releases New Title IX Regulations Requiring Sweeping Changes to How Schools Must Investigate and Respond to Sexual Harassment

The United States Department of Education released long awaited Title IX Regulations (Regulations) on May 6, 2020. The Regulations impose legal obligations on state and local educational agencies and institutions that receive federal financial assistance. The Regulations which take effect on August 14, 2020 require significant changes to how school districts, colleges and universities investigate and respond to sexual harassment occurring in their education program or activities. The Regulations provide for increased due process protocols for respondents (those accused of sexual harassment) and require that school officials act impartially without bias for or against a party and that respondents be afforded a presumption of innocence. The Regulations, among numerous directives, require schools to offer free, individualized “supportive measures” to complainants (victims of sexual harassment) as well as respondents whether a formal complaint is lodged and add protections for complainants from inappropriately being asked about prior sexual history. They also materially raise the standards of what constitutes sexual harassment in a school setting.

The Regulations have been met with both praise and opposition. Opponents of the Regulations argue that they will have a chilling effect on the reporting of sexual harassment and discount survivors’ rights. Currently, the ACLU has filed a lawsuit to challenge the legality of the Regulations.

Below is a non-exhaustive summary of the more salient provisions of the Regulations as they relate to elementary and secondary schools. Not discussed are those requirements specific to colleges and universities, including a live hearing requirement. This summary is not a substitute for consultation with legal counsel.

The Regulations contain provisions that:

1.) Formally recognize sexual harassment, including sexual assault, as a form of unlawful sex discrimination.

2.) Adopt a definition of sexual harassment that varies from the previously accepted definition and which aligns with the definition of sexual harassment in the workplace under Title VII.

The definition of “sexual harassment” for the purposes of Title IX is as follows:

Sexual harassment is conduct on the basis of sex that satisfies one or more of the following:

(i) A school employee conditioning education benefits or services on participation in unwelcome sexual conduct (i.e. quid pro quo) *
(ii) Unwelcome conduct that a reasonable person would determine is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school’s education program or activity;
(iii) Sexual assault (as defined in the Clery Act), dating violence, domestic violence, or stalking as defined in the Violence Against Women Act (VAMA).*
*No additional finding that the conduct was severe and pervasive and objectively offensive is required.

3.) Define “notice” to schools as “actual knowledge”. Actual knowledge means notice of sexual harassment or allegations of sexual harassment to a school’s Title IX Coordinator, any school official who has the authority to institute corrective measures on behalf of the school, or to any elementary or secondary school employee. Actual knowledge triggers the school’s response obligations.

4.) Require schools to respond when sexual harassment occurs in the school’s education program or activity against a person in the United States and clarifies that education program or activity includes locations, events, or circumstances over which the school exercised substantial control over both the respondent and the context in which sexual harassment occurs.

5.) Require schools respond promptly to Title IX sexual harassment in a manner not deliberately indifferent, which means in a way that is not clearly unreasonable in light of the known circumstances.

6.) Require schools to investigate the allegation of sexual harassment made in every formal complaint but provides for the mandatory and permissive dismissal of complaints if certain conditions are met. The school may address conduct not falling under Title IX under its school’s code of conduct and offer/provide supportive measures notwithstanding no filing of a formal complaint.

7.) Require schools to designate and authorize at least one employee to coordinate its efforts to comply with Title IX responsibilities and this person must be referred to as the “Title IX Coordinator”.

8.) Allow any person to report sex discrimination, including sexual harassment (whether or not the person is the alleged victim) in person, by mail, by telephone or by electronic mail, using the contact information provided for the Title IX Coordinator, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report; allow reporting at any time including during non-business hours.

9.) Require schools to notify applicants for admission and employment, students, parents or legal guardians of elementary and secondary school students, employees and all unions, of the name or title, office address, electronic mail address and telephone number of the designated Title IX Coordinator; requires schools to prominently display on their website the Title IX Coordinator’s contact information.

10.) Provide schools with a choice whether to apply a “preponderance of the evidence” standard of proof or the higher standard of “clear and convincing” evidence; grievance procedures shall state the selected standard to be applied to both students and employee respondents.

11.) Require schools offer complainants and respondents “supportive measures” (i.e. counseling, course related adjustments, modification of work or class schedules, escort services, increased security/monitoring of certain areas, mutual restrictions on contact between the parties) which are adopted to restore or preserve equal access to education.

12.) Mandate that the Title IX Coordinator promptly contact the complainant and inform, explain and offer “supportive measures” to a complainant with or without the need for the filing of a formal complaint and consider the complainants wishes regarding supportive measures, and explain the process of filing a formal complaint.

13.) Require schools follow a grievance process that complies with the Regulations before the imposition of any disciplinary sanctions or other actions against a respondent except for supportive measures. The Regulations specify timelines and steps for the investigation and decision-making process to be followed.

The grievance procedure shall include provisions for:

• written notice to both parties of allegations, and opportunity to select an advisor (who may but need not be a lawyer);

• use of trained Title IX personnel to objectively evaluate all relevant evidence;

• use of a decision maker that is not the same person as the investigator or the Title IX Coordinator;

• a “presumption of innocence” of the respondent during the grievance process;

• opportunity for the parties to submit and respond to written questions to/from the parties and to witnesses with additional time for limited follow-up;

• rape shield protections for complainants;

• the sharing by schools of evidence including inculpatory and exculpatory evidence with both parties;

• the provision of investigation reports to both parties prior to a final determination;

• the provision to both parties of a written determination regarding responsibility with an explanation for how and why the decision maker reached conclusions;

• a statement of the selection of the standard of proof to be applied and the requirement for the equal application of the selected standard to students and employees alike;

• prohibited access, disclosure or use of a party’s treatment records made or maintained by a physician, psychiatrist, psychologist unless the party gives written voluntary consent;

• an opportunity for both parties to appeal a final determination and appeal a school’s dismissal of a formal complaint or any allegations in the complaint on any of three basis: 1) procedure irregularity affecting the outcome; 2) new evidence not reasonably available at the time of the determination; or 3) a conflict of interest or bias of the Title IX Coordinator, investigator or decision maker that affected the outcome of the matter;

• effective remedies when sexual harassment is found;

• prohibition of retaliation against any individuals reporting and participating in the grievance process;

• publication of all materials used to train Title IX personnel on the school’s website;

• documentation and maintenance of records of all sexual harassment reports and investigations for seven (7) years.

14.) Offers K-12 schools the option for grievance procedures to include live hearings and the option to offer an informal resolution process (subject to certain conditions);

15.) Direct schools to consider the interplay of Title IX, Title VII and FERPA as well as account for the legal rights of parents and guardians to act on behalf of students with respect to the exercise of Title IX rights;

16.) A school’s response to sexual harassment shall never require the deprivation of an individual’s rights under the U.S. Constitution, including the First Amendment right to free speech.

Significant revision to policies and grievance procedures, provision of wide training of personnel along with consideration of the designation and assignment of staff to fill roles needed for the investigation, decision-making and appeal process related to complaints is required for K-12 schools as a result of the new Regulations. Schools are strongly encouraged to promptly review their grievance procedures, policies, handbooks and practices related to sex discrimination and sexual harassment to ensure they align with the new Regulations or risk the potential withdrawal of federal funding for non-compliance.

Berchem Moses’ Education Department is available to assist you and to answer your questions about implementation of the new Title IX Regulations.

1. Title IX is a federal civil rights law that was passed as part of the Education Amendments of 1972 and provides
that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the
benefits of, or be subject to discrimination under any educational program or activity receiving federal financial