Here’s What Changed Under the New Title IX Rules for K-12 Schools
On May 6, 2020, the United States Department of Education issued final regulations under Title IX governing sexual harassment in an educational setting. The new rules, which will become effective on August 14, 2020, carry the force of law and make significant changes to the Department’s former recommendations and guidance regarding how schools carry out proceedings in response to sexual harassment claims. However, the Department of Education will not enforce these new regulations retroactively.
Although the unofficial copy of the new regulations is 2,033 pages long, the following represent some of the most significant requirements that apply to elementary and secondary schools:
- Definition of “sexual harassment.” The new regulations limit a school’s Title IX process to “sexual harassment” as defined in the regulations. “Sexual harassment” includes the following three types of conduct: 1) quid pro quo harassment by a school’s employee on the basis of sex (i.e., school employee conditions educational benefits on partaking in unwelcome sexual conduct); 2) unwelcome conduct on the basis of sex that a reasonable person would find so severe, persuasive, and objectively offensive that it denies a person equal educational access; and 3) any instances of sexual assault as defined in the Clery Act, dating violence, domestic violence, or stalking as defined in the Violence Against Women Act.
The term “objectively offensive” was not used to define “sexual harassment” under the prior Title IX guidance. Moreover, the new regulations require that these elements be evaluated under the “reasonable person” standard.
Conduct that does not fall under the new definition of “sexual harassment” cannot be addressed under a school’s Title IX process. This is true regardless of whether the conduct meets the school’s definition of sexual harassment. To handle this change, schools should develop parallel procedures to address sexual misconduct that violates their own codes but does not constitute “sexual harassment” under Title IX.
- Location of sexual harassment. The new regulations explicitly define the scope of schools’ responsibilities to respond to complaints of sexual harassment. Specifically, schools must only respond to allegations of sexual harassment against a person in the United States. Furthermore, the alleged sexual harassment must have occurred in “locations, events, or circumstances over which the school exercised substantial control over both the respondent and the context in which the sexual harassment occurs.” If an alleged act of sexual harassment occurred off campus, a school need only respond if the location is in use by a school-sanctioned student or institution organization (i.e., athletic facilities).
Under the new regulations, a student may not file a complaint against another student or a faculty member at a school where the student does not participate in an educational program. Moreover, the new regulations do not extend Title IX protection to students studying abroad. Should schools wish to address and discipline sexual harassment occurring in study abroad programs, they should develop a disciplinary process outside of Title IX.
3) Schools must only investigate formal complaints under Title IX. Schools are only obligated to investigate formal complaints brought to the attention of officials who possess authority to take corrective action. A formal complaint is one filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the school investigate the allegation of sexual harassment.
For elementary and secondary schools, all school employees possess authority to take corrective action; therefore, formal complaints may be brought to any school employee. However, when a complaint is not brought to a person empowered to take action (i.e., a school employee for elementary and secondary schools), schools must follow various mandated response obligations, such as offering and informing the complainant of support measures. Schools may address all allegations in an informal complaint pursuant to their own code of conduct and outside of the Title IX process.
Schools must designate an employee to coordinate their efforts to comply with Title IX (“Title IX Coordinator”). Schools must notify students, employees, applicants for admission and employment, parents or legal guardians of primary and secondary school students, and all unions of the name or title, office address, e-mail address, and telephone number of the Title IX Coordinator. Schools must also display the Title IX Coordinator’s contact information on their websites. Any person may report sex discrimination, including sexual harassment, to the Title IX Coordinator at any time.
- Grievance Procedure. The new regulations provide the following detailed requirements for school grievance processes addressing sexual harassment:
- The grievance process must include reasonably prompt time frames for the conclusion of the grievance process and the filing/resolving of appeals. The grievance process must also allow for limited extensions of time for good cause with written notice to the Parties of the reasons for any extensions.
- Investigators and Title IX Coordinators may not be biased toward either party.
- All accused respondents are presumed innocent until the conclusion of the grievance process. However, the school must describe the range of possible disciplinary sanctions that it may implement following a determination of responsibility.
- Schools must conduct a threat assessment before removing an accused student from campus pending a decision in a Title IX case. Schools must also create a process for the accused student to immediately challenge his or her removal from campus.
- Schools must declare what evidentiary standard they are using to evaluate all Title IX complaints. (See, infra, Section 5.) Schools must use the same evidentiary standard for all Title IX cases.
- Prior to any formal interview regarding a sexual-harassment complaint, schools must send a notice of written allegations to the parties. Such notice must include, “the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment…, and the date and location of the alleged incident, if known.” The notice must also include a statement that the accused is presumed not responsible and that the parties may have an advisor of their choice (who may be an attorney) to inspect and review all evidence.
- Schools may no longer use a “single investigator” model to investigate, adjudicate, and issue disciplinary sanctions against students of faculty in Title IX cases. Instead, the new regulations require the following three separate officials to work in coordination to handle Title IX complaints: 1.) a Title IX Coordinator who receives reports of sexual harassment (see, supra, Section 3), 2) an investigator who gathers facts and interviews parties and witnesses; and 3) a decision-maker who determines sanctions and remedies.
- Schools may dismiss formal complaints upon the complainant’s request. Schools may also dismiss formal complaints if the respondent is no longer a student or employee at the school.
- Parties must have equal opportunity to present witnesses, including fact and expert witnesses. Parties must also have equal opportunity to present inculpatory and exculpatory evidence.
- Parties must have equal opportunity to review evidence before any investigative report is finalized, and to respond in writing to the evidence. The grievance process must protect all legally recognized privileged information unless such privilege is waived.
- Parties must have equal opportunities to present evidence during any grievance proceedings. Schools must provide advisors to students who do not have an advisor at all grievance proceedings.
- Schools must create an investigative report that fairly summarizes relevant evidence and, at least 10 days prior any determination regarding responsibility, provide the report to each party and the party’s advisor, if any. The report may be provided in an electronic format or a as hard copy for the party and/or his or her advisor’- review and written response.
- After sending the investigative report, decision makers must afford each party the opportunity to submit written, relevant questions that the party wants asked of any other party or witness; provide each party with the answers to all questions asked; and allow for additional, limited follow-up questions from each party.
- Schools may, but need not, provide for a hearing. (See, infra, Section 10.)
- The decision-maker must issue a final, written determination regarding responsibility. (See, infra, Section 6.)
- Remedies must be designed to restore or preserve equal access to the school’s educational program or activity.
- The Title IX Coordinator is responsible for implementation of any remedies.
- Evidentiary Standard for identifying sexual harassment. The new regulations require schools to presume that individuals accused of sexual harassment are innocent prior to the school’s investigative and decision-making process. Schools may now use the traditional “preponderance of the evidence” standard or the higher “clear and convincing” standard to determine guilt in Title IX cases. However, schools must declare which standard they are using, and they must use the same standard to assess responsibility for all Title IX cases.
- Determination regarding responsibility. The decision-makers must issue a final, written decision regarding responsibility. This written decision may be reached only after applying the school’s chosen evidentiary standard. (See, supra, Section 5.) The written decision must include the following:
- Identification of the allegations potentially constituting sexual harassment;
- A description of all procedural steps taken from when the school received the formal complaint through its issuance of the written decision. Such description should include all notices sent to the parties, any interviews with parties and witnesses, all site visits, all methods used to gather evidence, and any hearings the school held;
- Findings of facts to support the decision;
- Conclusions regarding the application of the school’s code of conduct to the facts;
- A statement of, and rationale for, the conclusion as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the school imposes on the respondent, and whether remedies designed to restore or preserve equal access to the school’s education program or activity will be provided by the school to the complainant; and
- The school’s procedures and permissible bases for the complainant and respondent to appeal.
- Mandatory Appellate Procedure. Schools must offer both parties a chance to appeal from a determination regarding responsibility, including from the institution’s dismissal of a formal complaint. A school’s grievance process must include the procedures and permissible bases for either party to appeal. Such appeals may be based on the following: prejudicial procedural irregularities (i.e., irregularities that affected the outcome of the matter), newly discovered evidence that could affect the outcome of the matter, and/or conflict(s) of interest or bias by Title IX personnel that affected the outcome of the matter. Other bases for appeal are allowed if they are provided equally to both parties.
Schools must notify the respondent(s) when an appeal is filed. Both parties must be given a reasonable time to submit a written statement in support of, or opposing, the written decision. The appellate decision maker(s) must issue a new written decision describing the results of any appeals and the rationales for such results. Such written decision must be simultaneously provided to both parties.
Schools must also ensure that the decision-maker(s) for any appeal is not the same person as the decision-maker(s) that reached the determination regarding responsibility or dismissal, the investigator(s), or the Title IX Coordinator.
- Complainant supportive requirements. The new regulations require schools to allow complainants to make decisions about how schools respond to incidents of sexual harassment. The regulations also require schools to offer supportive measures to complainants, such as the opportunity to changes classes or dorm assignments and the opportunity to pursue no-contact orders. A school’s grievance process must describe the supportive measures available to complaints.
- “Deliberate indifference” standard for school liability. The Department’s Office for Civil Rights may not find a school legally culpable for mishandling sexual harassment accusations under Title IX unless it finds that the institution was “deliberately indifferent” in carrying out mandates to support victims and in fairly investigating complaints. The regulations define “deliberately indifferent” as “clearly unreasonable in light of known circumstances.” The “deliberately indifferent” standard was previously used by courts to determine when a school could be sued for money damages arising out of its failure to address sexual harassment. Based on such caselaw, the “deliberately indifferent” standard is difficult to show.
The new regulations require Title IX Coordinators to promptly contact the complainant confidentially to discuss the availability of supportive measures, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint.
The new regulations also incorporate an “actual knowledge” prong to the “deliberate indifference” standard. Knowledge and a duty to act are attributed to a school only when notice of the sexual harassment was provided to the institution’s Title IX Coordinator, any institution official with authority to institute corrective measures, or to any employee of an elementary or secondary school.
- Differing regulations for postsecondary schools. Unlike the requirements for elementary and secondary schools, postsecondary schools must hold a live hearing as part of their Title IX grievance process. At such live hearing, parties must be allowed to cross-examine witnesses and any evidence from a witness who is not subject to cross-examination will not be considered by the decision-maker(s). Additionally, unlike elementary and secondary schools, postsecondary schools need only respond to a Title IX complaint if the complaint is brought to the Title IX Coordinators.
 Federal agencies authorized by statute to promulgate rules may only create rules with retroactive effect where the authorizing statute has expressly granted such authority. (See 5 U.S.C. § 551; Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) [“Retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.”].)
 The terms “school” and “schools” as used in this memorandum refer to elementary and secondary schools.