Sexual Harassment and Discrimination in Schools: New Title IX Regulations Issued by U.S. Department of Education

May 7, 2020 

On May 6, 2020, the U.S. Department of Education released the new Regulations under Title IX of the Education Amendments of 1972 (Title IX). These highly anticipated Regulations, which have been pending under a series of public comment opportunities and review, expand not only the scope of unlawful discrimination on the basis of sex to include sexual harassment in schools, but also expand the rights and responsibilities of those involved in the handling of sexual harassment matters on campus. The new Regulations are significant because public K-12 entities that receive federal funds must soon respond to sexual harassment allegations in alignment with the new Title IX requirements, whereas previous Office of Civil Rights Dear Colleague Letters were merely “guidance” for public K-12 entities.

The new Title IX Regulations go into effect on August 14, 2020 and contain these guiding principles:

• Sexual harassment is an unlawful form of sex discrimination and includes sexual assault, dating violence, domestic violence, and stalking (as determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to educational programming or activity).
• Schools must offer supporting measures (individualized services to restore or preserve equal access, protect safety, deter sexual harassment) to every alleged victim of sexual harassment.
• The values of equal treatment on the basis of sex, free speech, academic freedom, due process of law, and fundamental fairness support strong and clear procedural rights that are transparent and predictable for both alleged victims and the accused in the context of an investigation of complaints of sexual harassment.

Specific requirements for public K-12 school’s response to sexual harassment & assault under new Title IX Regulations:

• A school district is obligated to respond when: (1) the school has actual knowledge of sexual harassment; (2) that occurred within the school’s own “education program or activity”; (3) against a “person in the United States.”
  • “Actual knowledge” includes that of any school employee
  • Any individual (victim or a third party) may report allegations at any time and through any means that will result in the school district’s Title IX coordinator’s receipt
• A school district would be liable under Title IX when its response to a report of sexual harassment is clearly unreasonable in light of the known circumstances.
• A school district must proceed with its grievance process for every formal complaint of sexual harassment and must respond meaningfully/offer supporting measures to every alleged victim of sexual harassment.

Due process protections for those involved in sexual harassment complaints under new Title IX Regulations: 

• School districts must utilize a grievance process in handling complaints of sexual harassment under the new Title IX Regulations that incorporate due process, fair treatment of all parties, and result in reliable and responsible determinations.  Key aspects include:
  • Written notice of allegations and an equal opportunity to review evidence by both parties involved in a complaint of sexual harassment
  • Equal opportunity for parties to a sexual harassment complaint to select an advisor in the process (may be an attorney)
  • Designated Title IX personnel must be free from conflicts of interest or other bias to involved individuals
  • School districts may not use a single investigator model
  • The decision-maker in regards to complaints cannot be an investigator of the complaint or a designated Title IX coordinator
  • Written consent must be obtained by the school district in order to use a party’s medical, psychological, treatment records during the grievance process
  • Voluntary and written consent must be obtained before use of any “informal resolution” process (i.e. mediation, restorative justice) with regards to a complaint of sexual harassment
  • Presumption of innocence for the accused throughout the grievance process, with the burden of proof on the school district to establish Title IX violation
  • Use a clear and convincing evidence or preponderance of the evidence (recommended) standard  – the same standard must be used for processing all formal complaints of sexual harassment
  • Parties involved in a complaint of sexual harassment must be provided the opportunity to test the credibility of parties and witnesses through cross-examination, but alleged victim is protected from questions regarding prior sexual history
  • Provide both parties to a complaint of sexual harassment with written decisions from the complaint process which contain how and why conclusions were reached and offer equal opportunity to appeal
  • Protect all involved parties from retaliation

School district procedures include maintenance of sexual harassment reports and investigations. School districts must continue to publish their adopted grievance process and policy as well as prominently post contact information for the Title IX coordinator to its website and in all handbooks. School districts must also prominently post a statement that any person may make a report at any time through these available means. All Title IX materials used to train school personnel must also be published to the school district’s website.

Key considerations for allegations against an employee under new Title IX Regulations:

• Sexual harassment includes a school employee conditioning an educational benefit or service upon participation in sexual conduct.
• School districts may not use any “informal resolution” processes (i.e. mediation, restorative justice) for a complaint of sexual harassment involving a student and employee.

Compliance with the new Title IX Regulations will be key under the Title IX enforcement initiative announced by the U.S. Department of Education in February of this year.  The enforcement initiative is led by the Department’s Office for Civil Rights (OCR).  This purpose of the initiative is to combat the troubling rise of sexual assault in K-12 public schools and to enhance OCR’s enforcement of Title IX in both elementary and secondary public schools.  Compliance Reviews are just one component of OCR’s enforcement initiative.  An OCR Compliance Review will examine how sexual assault cases are handled by schools under Title IX, including sexual incidents involving teachers and school staff. OCR will work with school districts to identify and correct compliance concerns.

For additional information of the major provisions of the new Title IX Regulations, click here.

Contact district legal counsel and district policy services for any specific grievance procedure guidance or fact specific issues to prepare for compliance with the new Title IX Regulations prior to the start of the 2020-2021 school year.

Lisa Burleson is a partner at Walter Haverfield who focuses her practice on education law. She can be reached at lburleson@walterhav.com or at 616-246-2156.

Lisa Woloszynek is an associate at Walter Haverfield who focuses her practice on education law. She can be reached at lwoloszynek@walterhav.com and at 216-619-7835.