On May 19, 2020, the Department of Education (DOE) published new Title IX Regulations, officially titled “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance,” in the Federal Register. Despite the Covid 19 pandemic closing virtually all schools, the Regulations became effective August 14, 2020.
Unlike the Obama-era “Dear Colleague Letters” which were merely “significant guidance,” these new Regulations were enacted with notice and comment rule-making and applied uniformly with the force of law to all schools receiving federal funds of any kind, pre-K to vocational and postsecondary educational institutions.
The new Regulations re-defined sexual harassment. In particular, part of the new definition required that unwelcome sexual conduct must be “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.” Along with this new definition, the Regulations required extensive grievance proceedings to resolve allegations of sexual harassment. At the K-12 level, all employees were responsible for reporting any student or employee complaints that sounded like sexual harassment to the Title IX Coordinator. A complaint to any employee conveyed “actual knowledge” of sexual harassment to the institution.
New terminology was introduced. The “Complainant” was to receive “supportive measures” immediately upon a report of sexual harassment. The accused perpetrator, now known as the “Respondent,” was to be presumed “not responsible” until the culmination of the grievance process and possible appeal. A trained investigator, an independent decision-maker, and an independent appeals official were required. Live hearings were mandated as part of the grievance process at the postsecondary level but were optional at K-12 schools. School districts could choose among the standards of evidence, “more likely than not” or “clear and convincing” evidence. However, the Regulations only minimally described the nature of the “training” required, and neither did they specify who decided whether a live hearing would be part of a K-12 grievance process.
The 2020 Regulations did reinstate Title IX protections for all students and employees, including LGBTQ individuals, which the Trump administration had rescinded. However, the pandemic forced many schools to prioritize online learning concerns rather than staff development in the new Regulations. Consequently, many schools, especially K-12, have been non-compliant with the Regulations and are awaiting word from the new administration.
That word came soon after the 2020 election results were in. Issuing his “Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity” on March 8, 2021, President Biden made clear that LGBTQ individuals were to be protected under Title IX in all educational institutions.
Following this order, on April 6, 2021, DOE”s Office for Civil Rights (OCR) announced that OCR was undertaking a comprehensive review of the existing Title IX Regulations, beginning with a virtual live hearing on June 7-11, in which students, educators, and other stakeholders provided feedback about the Regulations.
OCR then issued a Q&A on July 20, with 66 questions about Title IX enforcement and a Notice of Interpretation about how OCR views schools’ existing obligations under Title IX. However, OCR stressed that, “While this review is ongoing and until any new regulations go into effect, the 2020 amendments remain in effect.”
Bottom Line for Schools
Schools must comply with the existing 2020 Title IX Regulations. Any changes to the Regulations may be at least a year (or more) away. Each K-12 school or school district must have a trained Title IX Coordinator and all staff must be trained in the Regulations because any employee may receive a complaint of sexual harassment. However, OCR’s Notice of Implementation stressed that the student complaining of sexual harassment must be deprived of educational access, meaning that the person sexually harassed must be denied equal access. The sexual harassment must, e.g., cause a student’s grades to fall. The student may become anxious, begin skipping classes, fail to concentrate. Parents of youngsters may report if a child begins bed-wetting.
The 2020 Regulations are minimum guidance only. Schools may do more. Schools may also apply the institutions’ codes of conduct to deal with sexual harassment that does not rise to a Title IX violation. However, training in the 2020 Regulations for all staff is critical. All employees must recognize and report complaints of sexual harassment to the Title IX Coordinator. Prevention of sexual harassment is the goal.
KingSpry will offer a webinar training for Title IX Coordinators on September 8, 2021. Click here for more information. Please note, this is a repeat of the August 10th training for those who were unable to attend on that date.
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.