On May 6, 2020, the US Department of Education issued an extensive update to the Title IX regulations (the “Final Rule”).  As the new regulations take effect on August 14, 2020, districts do not have much time to digest the information and prepare for implementation.  In an effort to assist our districts in learning the new material, Leasor Crass will be providing guidance and training over the next few months, beginning with the answers to what we expect to be some common questions listed below. As you develop additional questions, please reach out to us.  As always, we are here for you!

1. What is Title IX?

A law that prohibits discrimination on the basis of sex in educational institutions that receive federal funding.

2. What is the purpose of the recently issued revision?

As provided for in the Summary of the Final Rule, the primary purpose of the newly issued regulation is to:

[e]ffectuate Title IX’s prohibition against sex discrimination by requiring recipients to address sexual harassment as a form of sex discrimination in education programs or activities. The final regulations obligate recipients to respond promptly and supportively to persons alleged to be victimized by sexual harassment, resolve allegations of sexual harassment promptly and accurately under a predictable, fair grievance process that provides due process protections to alleged victims and alleged perpetrators of sexual harassment, and effectively implement remedies for victims.

Additionally, Secretary DeVos’ Summary states that the regulations “clarify and modify Title IX regulatory requirements regarding”:

• remedies the Department may impose on recipients for Title IX violations;
• the intersection between Title IX, Constitutional protections, and other laws;
• the designation by each recipient of a Title IX Coordinator to address sex discrimination including sexual harassment;
• the dissemination of a recipient’s non-discrimination policy and contact information for a Title IX Coordinator;
• the adoption by recipients of grievance procedures and a grievance process;
• how a recipient may claim a religious exemption; and,
• prohibition of retaliation for exercise of rights under Title IX.

3. Who is protected by Title IX?

Any person in the United States who is involved in an educational program or activity that receives Federal financial assistance.

4. What is the definition of sexual harassment for purposes of the revised regulations?

Any instance of quid pro quo harassment by a school’s employee, any unwelcome conduct that a reasonable person would find so severe, persuasive, and objectively offensive that it denies a person equal educational access, and any instance of sexual assault, dating violence, domestic violence, or stalking.

5. What is “quid pro quo” harassment?

Pursuant to the Final Rule, Section 106.30(a) of the implementing regulations now defines quid pro quo harassment as “[a]n employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct.”

6. What does the school’s education program or activity include?

Education program or activity includes locations, events, or circumstances over which the school exercised substantial control over both the respondent and the context in which the sexual harassment occurred. Title IX applies to all of a school’s education programs or activities, whether such programs or activities occur on-campus or off-campus.

7. Does a district have to have a Title IX coordinator?

Yes.

8. Who does the district have to notify of the Title IX coordinator’s contact information?

Applicants for admission and employment, parents or legal guardians of elementary and secondary school students, and all unions.

9. What Title IX contact information is a district obligated to give out?

The name or title, office address, e-mail address, and telephone number of the Title IX coordinator.

10. Does the district have to display the Title IX coordinator’s contact information anywhere else?

Yes.  Districts must display the contact information for the Title IX coordinator on their website.

11. What triggers an obligation to respond to allegations of sexual harassment?

K-12 schools must respond whenever ANY employee has actual notice of sexual harassment, including allegations of sexual harassment. Previously, districts had actual knowledge when an official with authority to take corrective action was notified.

12. Who can report sexual harassment?

As stated above, any person may report sexual harassment, either directly to the Title IX coordinator or to any other employee who is then responsible for forwarding the information to the Title IX coordinator.

13. When does a report of sexual harassment have to be made to require a district to act?

At any time, including during non-business hours.

14. What must a Title IX coordinator do after receiving a report of sexual harassment?

As revised, the regulations include specific obligations that the Title IX coordinator must undertake upon receiving a report of sexual harassment.  These include:

• promptly contacting the complainant confidentially to discuss the availability of supportive measures;
• considering the complainant’s wishes with respect to supportive measures;
• informing the complainant of the availability of supportive measures with or without the filing of a formal complaint; and,
• explaining to the complainant the process for filing a formal complaint.

15. What must a district do after receiving a report of sexual harassment?

The district must follow the grievance process that aligns with the new regulations.

16. After a report of sexual harassment is made, can the district discipline the alleged respondent?

No. The district must complete the grievance process and cannot impose any disciplinary sanctions or other actions against the student if the conduct in question arose out of the same facts of circumstances as a report of sexual harassment. However, the district may impose supportive measures against the respondent.

17. What are supportive measures?

Individualized services reasonably available that are nonpunitive, non-disciplinary, and not unreasonably burdensome to the other party while designed to ensure equal educational access, protect safety, or deter sexual harassment.

18. How does a school determine what supportive measures are appropriate?

A school’s selection of supportive measures and remedies should be based on what is not clearly unreasonable in light of the known circumstances.

19. Is the district required to investigate all reports of sexual harassment?

No. Either the complainant or the Title IX coordinator determines whether the report of sexual harassment is to be investigated. A complainant’s wishes with respect to whether the school investigates should be respected unless the Title IX coordinator determines that signing a formal complaint to initiate an investigation over the wishes of the complainant is not clearly unreasonable in light of the known circumstances.

20. Does the district have to investigate the report if the report does not meet the definition of sexual harassment or did not occur in the school’s education program or activity?

No. If the allegations in a formal complaint do not meet the definition of sexual harassment in the Final Rule, or did not occur in the school’s education program or activity against a person in the United States, the Final Rule clarifies that the school must dismiss such allegations for purposes of Title IX but may still address the allegations in any manner the school deems appropriate under the school’s own code of conduct.

21. When must a district investigate a report of sexual harassment?

The school must investigate the allegations when any formal complaint is filed.

22. What should the district do immediately after receiving a formal complaint?

The district must send written notice to both parties (complainant(s) and respondent(s)) of the allegations upon receipt of a formal complaint.

23. Are hearings required, as part of the investigation, for K-12 schools?

While the Final Rule makes hearings mandatory at the post-secondary level, hearings are optional for purposes of K-12. However, the rule does require schools to provide an equal opportunity for both parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence during the investigation.

24. Does the district have to afford each party the opportunity to question the opposing party?

Yes. The district must afford each party the right to question the opposing party. For postsecondary institutions, the school’s grievance policy must provide for a live hearing.  For K-12 schools, the grievance process may but need not provide for a live hearing.  With or without a hearing, after the school has sent the investigative report to the parties and before reaching a determination regarding responsibility, the decision-maker(s) must afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party.

25. Who issues the written determination of the investigation?

The decision maker, who cannot be the same person as the Title IX coordinator or the investigator.

26. How does a district conclude an investigation?

The decision-maker (who cannot be the same person as the Title IX coordinator or the investigator) must issue a written determination regarding responsibility with findings of fact, conclusions about whether the alleged conduct occurred, rationale for the result as to each allegation, any disciplinary sanctions imposed on the respondent, and whether remedies will be provided to the complainant. The written determination must be sent simultaneously to the parties along with information about how to file an appeal.

27. Do the complainant and respondent have the right to an appeal of a district’s decision?

Yes. A school must offer both parties an appeal from a determination regarding responsibility, and from a school’s dismissal of a formal complaint or any allegations therein, on the following bases:

• Procedural irregularity that affected the outcome of the matter;
• Newly discovered evidence that could affect the outcome of the matter; and/or
• Title IX personnel had a conflict of interest or bias, that affected the outcome of the matter.
• A school may offer an appeal equally to both parties on additional bases.

28. Can a district informally resolve a complaint?

Sometimes. A school, in its discretion, can choose to offer and facilitate informal resolution options, such as mediation or restorative justice, so long as both parties give voluntary, informed, written consent to attempt informal resolution. Any person who facilitates an informal resolution must be well trained. At any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint. However, schools must not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student.

29. What requirement does the Final Rule impose with respect to retention of information related to Title IX incidents?

The final rule requires schools to document and keep records of all sexual harassment reports and investigation changes for seven years.

For more information, please see the following resources:

• Title IX Regulations Addressing Sexual Harassment (Unofficial Copy)
• Title IX: U.S. Department of Education Title IX Final Rule Overview
• Title IX: Summary of Major Provisions of the Department of Education’s Title IX Final Rule
• Title IX: Summary of Major Provisions of the Department of Education’s Title IX Final Rule and Comparison to the NPRM
• OCR Webinar: Title IX Regulations Addressing Sexual Harassment