Like the Covid pandemic, the 2020 Title IX Regulations are still with us. Title IX is a civil rights act that prohibits discrimination on the basis of sex in all pre K-12 and postsecondary educational institutions that receive federal funding in any part of their programs or activities. Sexual harassment is discrimination on the basis of sex, and Title IX protects all students and employees of the school or school district from sexual harassment.
Since the effective date of the 2020 Title IX Regulations, August 14, 2020, many K-12 schools have taken advantage of KingSpry’s in-person and virtual training sessions on the current Regulations. The employees and students of these institutions understand the responsibilities now imposed.
However, many schools and school districts have continued with “business as usual,” a follow-up investigation and provision of due process to the accused when unwelcome sexual conduct was reported. If the reported sexual misconduct occurred on August 14, 2020 or more recently than this date, “business as usual” risks serious liability for the school or school district.
The new Regulations impose specific and much more onerous responsibilities on K-12 schools and school districts than in past practice.
In the K-12 context, a complaint of sexual harassment may also be made to any employee of the school, and the receipt of that complaint by any employee means that the school or school district now has actual knowledge of sexual harassment and must not be deliberately indifferent to the complaint. Immediately after a report of sexual harassment is made, the school must provide “supportive measures” to ensure the safety of the alleged “victim,” whether a formal complaint is filed or not.
Even the definition of sexual harassment has changed. No longer is sexual harassment merely “unwelcome conduct of a sexual nature.” The new definition of sexual harassment has three parts:
- An employee of the recipient conditioning the provision of an aid, benefit, or service of the school on an individual’s participation in unwelcome sexual conduct; also called quid pro quo harassment,
- 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 school’s education program or activity; or
- Sexual assault, dating violence, domestic violence, or stalking.
The reported conduct must satisfy one or more of the parts of the above definition. The four subsections of the third part have their own legal definitions, which originate in the Clery Act, the law that governs postsecondary institutions which must report crimes on campus and campus property. These now also apply to K-12 institutions.
The qualification “severe, pervasive, and objectively offensive” applies only to part (2) of the definition, that is, to “unwelcome conduct.”
In July 2021, the new Department of Education provided examples of behaviors that may cause unwelcome sexual conduct to rise to this level: a student’s academic performance may decline, a student may quit participating in an extracurricular activity or an athletic team, a younger student may begin bed-wetting at home.
In addition, the other words in that second part, “effectively denies a person equal access to the school’s education program or activity,” mean:
- The sexual harassment must occur as part of the school’s operations – i.e., its education program or activities, and in locations, events, or circumstances where the school has substantial control over the harasser and substantial control over the context in which the harassment occurs.
- Under the new Regulations, K-12 schools may also provide live hearings, in which advisors for both parties to the reported complaint may cross-examine witnesses. However, the Regulations do not clearly identify who may request or demand such a hearing.
If the sexual conduct reported satisfies the new definition of sexual harassment, the school must allow the parties involved to seek resolution of the complaint by informal means, such as mediation of restorative justice processes. If the parties do not agree to informal resolution, the school must engage in an extensive, prolonged, and expensive formal grievance process that involves (1) a trained investigator, (2) an independent decision-maker who determines responsibility of the accused, who is also a trained individual, and (3) an appeal by either party, if requested under certain circumstances, reviewed by a third trained individual. The standards of evidence may be either “preponderance of evidence” or “clear and convincing evidence,” but must be the same in all cases reported.
Bottom Line for Schools
Taken together, the new Regulations direct schools to take sexual harassment complaints seriously, but to withhold judgment of the accused perpetrator until the entire process described in the Regulations is completed. This is not business as usual. The saving grace of the Regulations is two-fold: the sexual conduct reported must be sufficiently serious to merit Title IX review and the schools’ obligations cease outside the school’s context and control. Mandated reporter obligations still apply, and school student and employee disciplinary codes may still apply.
The costs of ignoring the 2020 Title IX Regulations are high. A Title IX lawsuit can mire the school or school district in depositions, court appearances, expert witness fees, monitoring by DOE and other agencies, and even loss of personnel. Changing the Regulations will take time, perhaps months to a year. Whether and how the Biden DOE will change them to be more realistic and manageable for K-12 schools remains to be seen. A trained Title IX Coordinator and trained administrators and staff at all levels are critical now.
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.
