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    August 2019

    K-12 School Districts and the Department of Education’s Proposed Title IX Regulations

    In November 2018, the Department of Education (ED) released proposed regulations related to Title IX outlining how educational institutions conduct inquiries into allegations of sex discrimination, including sexual misconduct. Overall, the draft regulations emphasize that institutions must have a process that is equitable and fair to both complainants and respondents. 

    The regulations are available for review in the Federal Register. The public “notice and comment” period ended in February 2019; ED is reviewing all submitted comments and will publish final regulations. Because ED received nearly 125,000 comments and court challenges are expected, it may be a considerable amount of time before the regulations are implemented.

    In the interim, use this overview of the major changes proposed and United Educators’ (UE’s) recommendations to help your K-12 school district lay a foundation for Title IX compliance. 

    One major proposal involves adopting the “actual knowledge” and “deliberate indifference" standard for finding an educational institution in violation of Title IX during administrative enforcement by the ED Office for Civil Rights (OCR).

    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 also would include teachers but not others to whom students may confide, such as guidance counselors or teachers’ aides, unless the district has identified them as responsible employees under its policies.

    When a school or school district has actual knowledge of sexual harassment, it must respond in a way that is not deliberately indifferent. Schools should review their policies to see who is obligated to report knowledge of sexual harassment. 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 endorses 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 for determining whether an institution’s response to a sexual harassment complaint was adequate.


    Proposed Regulations Define Sexual Harassment

    ED’s proposed regulations explain that “sexual harassment” is:

    • Quid pro quo harassment by an employee;
    • Hostile environment harassment that is “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it denies a person access to the recipient’s education program or activity”; or 
    • Sexual assault as defined by state law. 

    ED’s proposed regulation provides a narrowed uniform definition of sexual harassment for schools to use in their policies, but it is unclear if an institution may adopt a more expansive definition for its own student code of conduct. Schools should review their policy definitions and determine necessary changes when the final regulations are adopted. 


    Required Institutional Grievance Procedures

    The proposed regulations will require all institutional grievance procedures to include equitable treatment of complainants and respondents by providing:

    • Remedies for the complainant when there is a finding of responsibility against the respondent;
    • Due process for the respondent before disciplinary sanctions are imposed;
    • An objective investigation of all relevant evidence, both inculpatory and exculpatory;
    • A listing of all possible sanctions and a description of the standard of evidence to be used; and
    • A presumption that the respondent is not responsible for the alleged conduct until a determination is made at the conclusion of the disciplinary process. Schools should ensure their investigators do not pre-judge the respondent’s culpability before a full investigation and evaluation of the evidence.

    Institutional grievance procedures also would include a range of “supportive measures” — called “interim measures” in prior Title IX guidance — available to both parties to restore or preserve access to the institution’s education program or activity. These supportive measures cannot unreasonably burden either party or come with a monetary cost.

    The proposed regulations give K-12 schools the option to conduct a live disciplinary hearing with cross-examination to determine the grievance process’ outcome. If schools use another process, they should provide both parties the opportunity to ask written cross-examination questions with follow-up. While this proposal is pending, check your institution’s policies to see that they include a minimum process — for example, the opportunity to appeal a determination. Also, be aware of specific court decisions that may require a certain approach in your jurisdiction. Work with counsel to ensure any changes to policies comply with the law and existing employee contracts.


    More Highlights From ED’s Proposal

    • Provide written notice to the parties of the grievance procedures and allegations allowing sufficient time to prepare a response before their initial interview. Details should include the:
      • Identity of the parties (if known)
      • Specific section of the disciplinary code alleged to be violated 
      • Date and location of the alleged incident.

      The notice also must include a statement that the respondent is presumed not responsible until a determination is made at the end of the disciplinary process. Schools cannot place limits on a student’s choice of a support person but may limit the person’s role in the process. To comply, schools may wish to prepare a standard “notice form” to send respondents when a complaint is made. Furthermore, if additional allegations are made later against the respondent, an updated notice must be provided.

    • Allow the use of either the “preponderance of evidence” or “clear and convincingevidentiary standard. However, an institution only may use “preponderance of the evidence” if that standard is used for conduct code violations not involving sexual harassment that carry the same maximum disciplinary sanction. Another proposed change requires institutions use the same evidentiary standard for student and faculty/staff discipline. In considering whether to make changes, institutions should review all policies governing allegations of misconduct, including teacher- and employee-related policies.
    • Permit informal resolution between the complainant and respondent prior to determining responsibility if both parties are provided certain notice and voluntarily consent to that process in writing. This proposed regulation allows parties to reach a resolution even while a formal investigation is ongoing. This may require additional training for those involved in facilitating the resolution.
    • Place the burden of gathering evidence on the institution, not the parties involved. This means students do not bear the burden of ensuring an investigator has all relevant information. It also means institutions may use evidence gathered by law enforcement, cannot prohibit parties from discussing the allegations with others at school, and must provide the parties with an opportunity to inspect, review, and respond to evidence that is directly related to the allegations. In addition, institutions must keep records of the investigation (including the determination, sanction, and remedies; any appeal; and information on resolution) for three years.
    • Allow the opportunity for cross-examination of the parties and witnesses during the live hearing or the grievance procedure (if no live hearing is held), with limits.
      • No direct questioning by the parties. Questioning during any live hearing must be conducted by the respondent’s advisor of choice, who may be an attorney. If there is no live hearing, the parties are to submit written questions and follow-up questions to the decision-maker.
      • Questions relating to a complainant’s prior sexual history are prohibited, unless those questions are offered to prove someone else was responsible for the alleged conduct, or if offered to prove consent.
    • Require a written determination regarding responsibility, which includes the code of conduct section alleged to be violated, a description of the investigatory steps taken, and the findings of fact. In addition, the written determination must include conclusions regarding applying the policy to the facts, a statement with rationale detailing the result of each allegation with any imposed sanctions and remedies provided, and the bases and procedures for appeal. Institutions may wish to prepare a determination template if they do not have one. 


    UE Recommendations

    Although these proposed changes have not been adopted formally, UE recommends that schools and school districts:

    • Consult with legal counsel before revising sexual misconduct policies or procedures. Until the final regulations are released, refrain from issuing extensive changes. Rather, strive to make policy revisions in a systematic manner. Institutions that have continuously revised their policies to align with OCR’s previous Title IX guidance should be well-positioned to make these additional changes.
    • Continue to train school personnel. Once the final Title IX regulations are adopted, obligations of individuals with reporting requirements may need to be clarified and additional training may be necessary. 
    • 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.
    • Stay abreast of case law in your jurisdiction arising out of an institution’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.
    • Ensure investigators and decision-makers receive training on the definition of sexual harassment and your process in a bias-free way. In addition, train students, faculty, and staff on any revisions to an institution’s policy or procedures. Ensure that all training materials are free from bias, stereotypes, or encouraging a predetermined investigatory outcome.
    • If you are subject to a pending OCR investigation, consider starting a dialogue with the appropriate OCR regional office to understand how the final regulations will apply to your school’s situation.

    Existing resolution agreements remain binding. Schools and their counsel also may want to discuss with OCR the continuing need for extensive compliance or monitoring requirements mandated under those agreements.

    While the proposed regulations are not enforceable at this time and may undergo changes, schools should begin a policy and process review now, with a focus on fairness for all parties involved. 


    Resources

    Proposed Rule: Federal Register

    By Heather Salko, senior risk management counsel

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