Title IX prohibits discrimination on the basis of sex in all educational institutions receiving federal funding. On May 6, 2020, in the midst of the school closings due to Covid-19, Betsy DeVos and the Department of Education issued new Title IX Regulations promised by the Office for Civil Rights (OCR) on September 22, 2017.
The proposed regulations were published in the Federal Register on November 29, 2018, and the 38-page document was open for public notice and comment. The proposed regulations spurred 124,149 comments. The Department was required to categorize and respond to all comments, and the 38 pages of proposed changes swelled to a 2,033-pages-long document, which was published in the Federal Register on May 19, 2020. Most of the so-called Final Rule is directed to institutions of higher education, but significant changes apply to K-12 schools.
The new Rule defines sexual harassment to be more in line with the Supreme Court decisions that enunciate the judicial liability standards in Title IX litigation. The definition also adds as its first element quid pro quo (this-for-that) sexual harassment, which is also prohibited in the workplace under the related statute, Title VII. The definition in the new Rule states:
Sexual harassment means conduct on the basis of sex that satisfies one or more of the following:
- An employee of the [school] condition[s] the provision of an aid, benefit, or service of the [school] on an individual’s participation in unwelcome sexual conduct;
- Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity;
- Dating violence, domestic violence, and stalking.
These types of prohibited conduct were added to the definition to be consistent with both the Clery Act and the 2013 Reauthorization of the Violence Against Women Act, both applicable to colleges and universities. And since liability for a Title IX violation is attributed to an educational institution, not to an individual or group of individuals, prior to the new Rule, an official of the school with authority to take corrective action on behalf of the school must have had actual knowledge of the sexual harassment and been deliberately indifferent to that knowledge.
In the past, identifying who was the “official with authority” created confusion and uncertainty. The new Rule clarifies that any employee of a K-12 school can be the person who received actual knowledge, in addition to the Title IX Coordinator and school officials. Therefore, teachers, counselors, bus drivers, cafeteria workers, and custodians, as well as all other school employees, can receive actual knowledge, and they must take action that is not clearly unreasonable. Many of these individuals are also mandatory reporters of child abuse.
Once a formal complaint is filed, both parties must receive written notice of the allegations with enough details to permit both parties to prepare for an interview. Time frames for investigations are removed, but resolution of complaints must still be prompt. However, informal resolution of complaints, such as mediation, is also allowed, with the voluntary consent of both parties, except in cases of sexual harassment of a student by a school employee. In all complaints, formal or informal, non-disciplinary and non-punitive support measures must be offered to both parties.
One of the most manpower-focused provisions expands the “single investigator” model in which one official of the institution handles the investigation, the adjudication, and determines the sanctions to be applied. Under the new Rule, the Title IX coordinator who conducts the investigation cannot also be the decision maker and determine sanctions.
The Department responded to commenters’ questions about the meaning of “sex,” and Title IX protection for LGBTQ individuals. The Department declined to define “sex,” but noted that the focus of the new Rule is on prohibited conduct, which may be directed toward any individual. Therefore, the new Rule states that the Department will not tolerate sexual harassment against any student, including LGBTQ students.
Perhaps the most controversial provisions involve new evidentiary standards and the option of live hearings during investigations. Obama-era Dear Colleague Letters required using the preponderance of evidence standard in adjudicating sexual misconduct complaints, but the new regulations allow institutions to choose to apply the preponderance of evidence (more likely than not) standard, or the harder-to-prove standard of clear and convincing evidence.
K-12 schools may also now conduct live hearings where advisors of the parties cross-examine parties and witnesses, but they are not required to do so. Whether or not a hearing is held, both parties must have the opportunity to submit written questions for parties and witnesses to answer.
The Final Rule also narrows the scope of sexual misconduct that schools must investigate to complaints of misconduct that occur within the officially recognized educational program or activity of the school. Complaints of sexual misconduct outside school would not be investigated as Title IX complaints, but could be handled under the schools’ conduct policies.
Bottom Line for Schools
Contrary to the former Dear Colleague Letters issued by OCR, which were considered to be “significant guidance” only, the new regulations will carry the force of law. According to the Rule, schools must comply with the new rule by August 14, 2020, less than two months from now. All personnel must also be trained, and signage must publish the new policies and procedures.
The new Rule also specifies new grievance and appeals procedures. This article is only a snapshot of the changes. K-12 school districts are urged to contact their legal counsel for help with compliance issues. No K-12 district wants to be the test case!
If you have a question, please contact your legal counsel or one of the education attorneys at KingSpry.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.