USDOE Releases New Title IX Regulations

The US Department of Education has issued final regulations concerning sexual harassment in K-12 schools, colleges and universities.  The new regulations take effect on August 14, 2020.  While most of the news reporting has focused on changes to colleges campuses, these changes will also significantly impact K-12 schools. The regulations require changes to policy and to current school district practices in investigating and imposing discipline on those accused of sexual harassment.  The focus is in treating both parties equitably.  Discipline, if justified, must be based on a fair grievance process in compliance with the regulations.

Key Changes for K-12 Schools:

  • Revises the definition of sexual harassment. Sexual harassment is conduct on the basis of sex that satisfies one or more of the following:
    • A school employee conditioning educational benefits on the participation in unwelcome sexual conduct (quid pro quo); or
    • Unwelcome conduct that “a reasonable person” would consider “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the educational program; or
    • Sexual assault, Domestic Violence, Dating Violence, Stalking which are all presumed to be sexual harassment.
  • Expands What Constitutes an “Appropriate Official”. Notice to a school district to take action is expanded.  Notice to schools refers to “any employee of an elementary or secondary school.”  Prior guidance referred to an “appropriate official who had authority to take corrective action” this was understood to refer to teachers, school counselors and administrators. This expansion to “any employee” clearly signifies the need to conduct Title IX training for all employees. A report made to the Title IX Coordinator is presumed to be notice.
  • Requires Actual Knowledge. The new regulations have rejected the “knew or should have known” standard for liability.  It is important to be aware notice can now be made to any employee.
  • Expands Program and Activity. The new definition is expanded to include “locations, events, or circumstances over which the school exercised substantial control over both the respondent (accused) and the context in which the sexual harassment occurs.”
  • Adoption of Non-disciplinary Supportive Measures. The Title IX Coordinator must provide non-disciplinary supportive measures and must have the authority to implement these measures. The supportive measures must be available to both parties and may include “counseling, extensions of academic deadlines or other course adjustments, mutual restrictions on no contact between the parties, and increased security.”  Supportive measure may not “unreasonably burden” the other party.
  • Emergency Removal. A student who is accused of sexual harassment may be removed on an emergency basis only if he or she is found to pose an immediate threat to the physical health or safety of another individual.
  • Expands Reporting Requirements. Schools must provide information to its entire community, which includes students, parents, legal guardians and employees, of the name, title, address, email address and telephone number of the person designated as Title IX Coordinator.  This information must also be available on the school’s website. Parents and guardians have the legal right to file complaints and act on behalf of their student.
  • New Grievance Process. A decision-maker cannot serve as the Title IX Coordinator or investigator.  The grievance process will involve three people: 1) a Title IX Coordinator; 2) an investigator; and 3) a decision-maker.  School officials involved in the Title IX proceedings must not have a conflict of interest or bias.  Those involved will be required to receive training on how to conduct an impartial investigation and grievance process.
  • Informal Resolution. Schools may use an informal resolution process as long as comprehensive notice is provided to the parties and both parties consent.
  • Equal Access to Information. The accused party must be given notice of the complaint and “sufficient details” along with “sufficient time” to prepare for the initial investigatory interview. After an investigation is complete, both parties must be given copies of all evidence and provided ten (10) days to review and respond.  The investigator is then required to place his/her findings in a report which is then shared with both parties. The parties have another ten days to respond to the investigation report.  This includes the ability for the parties to submit relevant written cross-examination questions to the other party. Relevant questions would not include any questions regarding prior sexual activities and/or experiences of the other party. Thereafter, an appeal process is provided to both parties.
  • Standard of Evidence. Schools are responsible for informing parties of the adopted standard as either “preponderance of the evidence” or a “clear and convincing” standard. The adopted standard must be applied in the same manner to all parties and in all Title IX proceedings.
  • Record Keeping. Schools are required to maintain records of Title IX investigations and training materials for seven years. The training materials must be posted on the school district websites.
  • Training for Title IX Coordinators, Investigators, and Decision-makers. Title IX Coordinators must receive training on the definition of sexual harassment, the scope of a school district’s “program and activity” for school responsibility, how to conduct an investigation, issues of bias,  the grievance and appeal process, evidentiary standards and use of relevant evidence.

MBM Education attorneys are prepared to guide you in bringing your school into compliance with the new regulations prior to the effective date of August 14, 2020.  Our attorneys are prepared to review and revise your current policies, discipline practices and provide training on the new requirements.

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