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    June 2020

    ED Releases Title IX Regulations Governing Sexual Misconduct: Guidance for K-12 Schools

    The Department of Education (ED) has released final regulations related to Title IX mandating how educational institutions must respond to allegations of sexual harassment, including sexual misconduct. Overall, the regulations emphasize that institutions must have a fair, equitable process for both complainants and respondents.

    The regulations were published in May 2020 in the Federal Register and take effect Aug. 14, 2020, leaving schools limited time to comply.

    Receiving “federal financial assistance” triggers Title IX. These regulations apply to public K-12 schools, as they always have been subject to Title IX. For independent schools, whether Title IX applies involves an intricate analysis of various federal monies receive. Independent schools that accepted funds through the Small Business Administration Paycheck Protection Program in 2020 should consult with counsel about the applicability to their schools of Title IX and these regulations as recipients of federal funds under the SBA PPP requirements.

    The final Title IX regulations largely incorporate the significant changes proposed in the November 2018 Notice of Proposed Rulemaking (NPRM). Over the coming months, UE will review and update our Title IX resources to best aid members with compliance. In the meantime, a summary of significant portions of the regulations is below.

    Administrative Enforcement Standard

    The regulations adopt the “actual knowledge” and “deliberate indifferencestandard for finding an educational institution in violation of Title IX during administrative enforcement by the ED Office for Civil Rights (OCR).

    When a school has actual knowledge of sexual harassment, it must respond in a way that is not deliberately indifferent.

    Actual knowledge is notice of sexual harassment to the school’s “Title IX Coordinator or to any official of the recipient who has authority to institute corrective measures on behalf of the recipient.” In K-12 schools, this includes any employee. Therefore, all employees need training on how to report information they receive to the school’s Title IX Coordinator.

    Deliberate indifference occurs when the response to sexual harassment is “clearly unreasonable in light of the known circumstances.” This is the legal standard the Supreme Court applies for liability in Title IX lawsuits alleging sexual harassment, a high bar to overcome for students bringing a lawsuit. Adoption of this standard allows for a single, consistent standard in both administrative enforcement and litigation for determining whether a school’s response to a sexual harassment complaint was adequate.

    Regulations Define Sexual Harassment

    The regulations state that sexual harassment is conduct on the basis of sex that is either:

    • Quid pro quo harassment (an employee conditioning grades or other educational benefits on participation in unwelcome sexual conduct);
    • Hostile environment harassment that is “unwelcome conduct determined by a reasonable person that is so severe, pervasive, and objectively offensive that it denies a person equal access to the recipient’s education program or activity”; or
    • Sexual assault as defined by the Clery Act; or dating violence, domestic violence, or stalking as defined by the Violence Against Women Act (VAWA). (These definitions may be unfamiliar to K-12 schools because these laws do not otherwise apply to them.)
    • The regulations provide a narrowed uniform definition of sexual harassment for all schools to use in their policies, but a school may adopt a more expansive definition for its own student code of conduct, and determine the process for investigating and adjudicating matters outside the purview of Title IX. Schools should review their policy definitions and make necessary changes.

    Required Grievance Procedures

    The regulations prescribe an institutional grievance process following the filing of a formal complaint (discussed below). The process must treat complainants and respondents equitably by providing:

    • Supportive measures (discussed below)
    • Remedies for the complainant designed to restore or preserve equal access to the education program or activity when there is a finding of responsibility against the respondent
    • An objective investigation of all relevant inculpatory and exculpatory evidence
    • A listing of all possible sanctions and a description of the standard of evidence to be used
    • Reasonably prompt time frames for concluding the grievance process
    • A presumption that the respondent is not responsible for the alleged conduct until a determination is made at the conclusion of the grievance process. Schools should ensure their investigators do not have a conflict of interest or pre-judge the respondent’s culpability before a full investigation and evaluation of the evidence.

    Supportive measures must be made available to both parties to restore or preserve access to the school’s education program or activity. These supportive measures cannot unreasonably burden either party or come with a monetary cost. They can include counseling, extending assignment deadlines, or mutual restrictions on contact between the parties, among other things.

    Following the filing of a formal complaint, which is defined in the regulations, K-12 schools must follow a highly prescriptive process. First, this triggers an obligation to investigate and provide supportive measures. K-12 schools have more leeway in how they conduct responsibility determinations and impose discipline. They have the option to conduct a live disciplinary hearing with cross-examination to determine the outcome, but they are not required to do so.

    One key decision that all schools will have to make is how to conduct the grievance procedure. Schools should carefully consider all applicable policy and legal considerations in making this important decision.

    Whether the school employs a hearing or not, it must send the investigative report to the parties and an opportunity to let them submit written questions to be asked of the other party or any witnesses. Once you provide each party with the answers, they may ask limited follow-up questions in writing. The decision to exclude a question because it is not relevant must be explained to the party seeking to pose the question. Work with counsel to ensure you make necessary changes to policies to comply with the law.

    The regulations also emphasize that parents or guardians have the same rights as K-12 students to file complaints and participate in the grievance process. Whether a parent or guardian has the legal right to act on behalf of a student would be determined by state laws, court orders, child custody arrangements, or other sources granting legal rights to parents or guardians.

    Following a determination regarding responsibility, or a dismissal of a formal complaint, both parties must have the opportunity to appeal, based on certain grounds the regulations detail.

    More Highlights From the Regulations

    • Provide written notice to the parties of the grievance process and allegations allowing sufficient time to prepare a response before any initial interview. Notice details include:
      • The parties’ identities (if known)
      • The actions alleged to constitute sexual harassment
      • The alleged incident’s date and location
      • A statement that the respondent is presumed not responsible until a determination is made at the end of the grievance process
      Schools may wish to prepare a standard “notice form” to send respondents when a complaint is made. Furthermore, if additional allegations are made against the respondent, an updated notice must be provided.
    • Students are entitled to an advisor of their choice; this person may be a parent or attorney. Schools can limit the advisor’s role in the process, subject to parental or guardian rights, as long as those limitations apply equally to the complainant and respondent.
    • Choose either the “preponderance of evidence” or “clear and convincing” evidentiary standard. However, a school must use the same standard for all formal complaints of sexual harassment, whether against students or teachers/staff. In considering which standard to choose, review all policies governing allegations of sexual misconduct, including teacher- and staff-related policies, contracts, and collective bargaining agreements. Consult with counsel about necessary changes and consequences of choosing one standard over the other.
    • Permit informal resolution between the complainant and respondent after the complainant has filed a formal complaint and prior to determining responsibility. Both parties must receive notice and voluntarily consent to the process in writing. Follow training requirements in the regulations for those involved in facilitating any informal resolution. Schools may not condition continued enrollment or employment on engaging in the informal resolution process. Informal resolution may not be used where there are allegations that a school employee sexually harassed a student.
    • Place the burden of gathering evidence on the school, not the parties involved.This means students do not bear the burden of ensuring an investigator has all relevant information. Schools may not prohibit parties from discussing the allegations with others and must provide the parties and parents with an opportunity to inspect, review, and respond to evidence gathered during the investigation.
    • For seven years afterwards, schools must keep records of all investigations (including supportive measures, the responsibility determination, sanctions, and remedies; any appeal; and information on resolution).
    • Require a written determination regarding responsibility, with a description of the alleged behavior constituting sexual harassment, all procedural and investigatory steps taken, and the findings of fact. In addition, the written determination must include:
      • Conclusions regarding applying the school’s policy to the facts
      • A statement with rationale detailing the result of each allegation
      • Any imposed sanctions and remedies provided
      • The bases and procedures for appeal
      Consider preparing a determination template if your school does not have one.
    • Retaliation is prohibited. Neither the school nor the parties may retaliate against any person who reports sexual harassment, files a formal complaint, is a party to or witness in any investigation or grievance process. Any allegations of retaliation must be investigated and resolved in accordance with the school’s grievance process.

    UE Recommendations

    Now that these regulations are nearing their effective date, UE recommends that schools:

    • Consult with legal counsel before revising your sexual misconduct policy or procedures. Schools that have continuously revised their policies to align with OCR’s previous Title IX guidance should be well-positioned to make these required changes.
    • Train school personnel. Once the policy changes are made, follow the training obligations enumerated in the regulations and post training materials to your school’s website for public review. Training must be conducted in a bias-free way and all training materials must be posted on the school’s website or otherwise made available to requesting parties.
    • Comply with relevant state laws. Some states, such as California and New York, have passed their own requirements relating to sexual harassment or assault at educational institutions. While these laws have applied primarily to higher education institutions, check with counsel regarding any implications for your school. The regulations make clear that they preempt any conflicting state laws, but your state may mandate additional requirements.
    • Stay abreast of case law in your jurisdiction arising out of a school’s handling of a student sexual assault. Student litigation may be a more pressing liability threat than OCR Title IX enforcement. Schools should be aware of court-imposed standards of care or process requirements.
    • Consider additional training. In addition to the mandated training requirements for Title IX Coordinators, investigators, decision-makers, and informal resolution facilitators, you may wish to train students, faculty, and staff on any revisions to your school’s policy.
    • If you are subject to a pending OCR investigation or existing voluntary resolution agreement, consider starting a dialogue with the appropriate OCR regional office to understand how the regulations apply to your school’s situation.

    While the regulation’s mandates may seem overwhelming, and the implementation time is short, a methodical approach will allow your school to meet the implementation deadline.

    By Heather Salko, senior risk management counsel


    Additional Resources

    Federal Register: Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance

    ED: Title IX Regulations, summary of major provisions

    ED: Title IX Regulations, summary comparison of final rule to NPRM

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