Author: Anisa Pillai, Attorney at Law
On May 6, 2020, the U.S. Department of Education (USDOE) released its long-anticipated final regulations under Title IX of the Education Amendments Act of 1977 (Title IX), which govern sexual harassment and sexual assault policies on K-12 and college campuses.
The Trump Administration withdrew Obama-era guidance on Title IX in 2017 and published proposed regulations in November 2018. Subsequently, the USDOE’s Office for Civil Rights (OCR) has spent the last year and a half reviewing over 124,000 public comments and holding meetings with various interested parties before releasing the final regulations in May 2020. The final regulations took effect on August 14, 2020.
Title IX prohibits discrimination on the basis of sex, including sexual harassment, in education programs or activities receiving federal financial assistance. The new regulations will be the first Title IX guidance to have the force of law; rules issued by OCR under the Obama Administration in 2011 and 2014 were administrative guidance. The new rules make several changes to the ways in which K-12 schools must handle sexual harassment and sexual assault claims. The major changes are summarized below.
Changes the Definition of Sexual Harassment
The new rules define sexual harassment as:
- Quid pro quo harassment;
- Unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies the victim equal educational access; or
- Sexual assault; dating violence; domestic violence; or stalking.
Obama-era guidance explicitly included verbal conduct in the definition of sexual harassment, such as making sexual comments or jokes, spreading rumors, or creating emails or websites of a sexual nature, and schools were encouraged to investigate sexual harassment before such conduct became severe or pervasive. The new rules appear to reject the idea that conduct may not be severe and pervasive but may contribute to creating a broader hostile environment and, as such, qualify as sexual harassment.
Responding to Complaints of Sexual Harassment
The new rules change a school’s obligation to investigate complaints. Pursuant to Obama-era guidance, schools were required to respond to sexual harassment complaints of which they had actual knowledge or they should have been reasonably aware. The new rules only require a school to respond when they have actual knowledge of sexual harassment. However, the new rules establish that all K-12 school staff are mandated Title IX reporters in that they are required to report incidents of sexual harassment to the appropriate school authorities for investigation.
Location of Sexual Harassment
The new rules require schools to respond to sexual harassment that occurs “in the school’s educational program or activity” which includes “locations, events, or circumstances over which the school exercised substantial control over the respondent and the context in which the sexual harassment occurred.” Under the Obama-era guidance, schools were required to process all complaints of sexual harassment regardless of where the conduct occurred, to determine whether the conduct had a continuing effect on the campus community. Notably, the new rules only apply to conduct that occurs in the United States, thereby leaving students in study abroad programs without Title IX protections.
The new rules require schools to immediately provide “supportive measures” to students, with or without a formal complaint. These supportive services include counseling, extensions of deadlines or other course-related adjustments, modifications of class or work schedules, the provision of campus escort services, mutual restrictions on contact between the parties, changes in work or housing location, leaves of absence, and increased security and monitoring on campus. To compare, Obama-era guidance required schools to provide “comprehensive, holistic victim services” such as free medical services and academic support such as tutoring. The prior rules also contained remedies for the broader student population such as counseling and mental health services.
Hearings Optional for K-12 Schools
A K-12 school may hold live disciplinary hearings in sexual assault misconduct cases and schools may allow the cross-examination of witnesses. While Obama-era guidance did not prohibit live hearings or cross-examination, the guidance did not encourage such practices. K-12 schools are allowed to make the hearing procedures less formal than hearings conducted by colleges and universities as long as schools provide an equal opportunity to both parties to present evidence. Schools must give each party an opportunity to submit written questions to the other party; provide each party with the answers; and allow for additional follow up questions from each party.
Establishes Detailed Grievance Procedures
The new rules establish detailed grievance procedures and various protections for individuals accused of sexual harassment or assault. Specifically, among other protections, the new rules require schools to presume that the respondent is innocent until a determination is made at the conclusion of the grievance process. The new rules also require schools to provide written notice of the allegations to both parties (and their parents) upon receipt of a formal complaint, and require schools to provide a copy of the investigative report, which fairly summarizes the relevant evidence, before the hearing. The new rules also provide each party with an equal opportunity to present evidence and appeal the school’s decision. Obama-era guidance provided less detailed grievance procedures which allowed individual schools to establish procedures of their own. Under the Obama-era guidance, schools were authorized to place heavier pre-determination restrictions on the individual accused of sexual harassment, such as changing the respondent’s schedule. The new rules also authorize schools to choose whether to apply either the “preponderance of the evidence” standard, which was required under the Obama-era guidance, or the “clear and convincing evidence” standard, which creates a higher burden of proof for victims. Schools are required to use the same standard for all complaints, including complaints that involve school staff.
The new rules make several significant changes to Title IX. As such, a local educational agency (LEA) should consider reviewing these changes to determine whether the LEA must revise its own policies on sexual harassment and/or sexual assault to reflect these new rules.