As predicted, the Department of Education (USDOE) recently released its proposed regulations for Title IX. These regulations have yet to take effect.
Under federal law, the public must be given an opportunity to comment on the proposed regulations before any regulation is formally adopted and implemented. However, given the proposed revisions, educational institutions should start to review their current Title IX policies to ensure compliance with any and all upcoming regulations.
The Proposed Regulations:
- Adopt a definition of what constitutes sexual harassment. Sexual harassment is defined as being “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 recipient’s education program or activity” under Title IX. This is a change from the definition previously used during the Obama Administration which defined sexual harassment as “unwelcome conduct of a sexual nature.”
- Define when Title IX is triggered to those circumstances when: (1) the school has “actual knowledge” of sexual harassment; (2) sexual harassment occurred within the school’s own education program or activity, and (3) the sexual harassment occurred against a person in the United States.
- Define “actual knowledge” of sexual harassment as being limited to those officials within an educational institution who have authority to implement corrective action. This definition would exclude most professors, administrators, and staff.
- Require schools to investigate every formal complaint and to meaningfully respond to every report of sexual harassment.
- Require schools to “provide supportive measures” that are designed to preserve or restore a student’s access to the school’s educational program or activity.
- Require due process protections which include:
(a) Using a presumption of innocence throughout the grievance process with the burden of proof resting with the educational institution;
(b) Conducting live hearings within the higher educational context;
(c) Requiring that schools adopt a model which requires a Title IX decision maker to be separate from the Title IX coordinator;
(d) Requiring schools to publish a burden of proof that adopts either a “clear and convincing standard” or a lower standard of “preponderance of the evidence;”
(e) Permitting parties to conduct a thorough cross-examination;
(f) Requiring notice of allegations to be sent, in writing to the accused;
(g) Providing the accused with an opportunity to review all evidence;
(h) Requiring Title IX coordinators, investigators, and decision makers to be free from bias and any conflicts of interest; and
(i) Providing an equal opportunity for parties to appeal.
Bottom Line for Schools
While the proposed USDOE regulations are drafted with higher education in mind, the basic precepts are equally applicable to K-12. Schools should begin now to review their Title IX policies to ensure consistency with the new regulations.
Once the proposed regulations have been published in the Federal Register, one has sixty (60) days to formally comment. However, many professionals are predicting that the final regulations will mirror what is being proposed.
If your school has a question about Title IX or the proposed changes, please contact your legal counsel or one of the attorneys at KingSpry.
This School Law Bullet is a publication of the KingSpry Education Law Practice Group. John E. Freund is our editor. It is meant to be informational and does not constitute legal advice.