On this day in 1972, the President signed Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq., into law and on May 6, 2020, the U.S. Department of Education (“ED” or “the Department”) released the long-anticipated final Title IX regulations, which will have a significant impact on schools all across the country. This post identifies some of the key takeaways from the final regulations and related comments from the Department. Below are hyperlinks to the high-level conceptual elements and requirements regarding the process from the regulations.

Table of Contents

Key Conceptual Elements of the Title IX Regulations

Requirements of Title IX Final Regulations

What This Means for You

Key Conceptual Elements of the Title IX Regulations

The final regulations are heavily focused on elements of due process, including notice of allegations, access to evidence, and the right to appeal. They mandate that formal complaints of sexual harassment be resolved pursuant to elaborate processes that will necessitate greater expertise, training, documentation and investment by school districts.

Deliberate Indifference Framework

The starting point for the final regulations is the Supreme Court’s “deliberate indifference” framework for Title IX civil liability. Under the Gebser/Davis standard, a district is liable in a civil suit under Title IX only if: (1) it has actual knowledge of sexual harassment occurring in a setting where the institution exercises substantial control over the alleged harasser and the context in which the alleged harassment occurs; (2) the district’s response is deliberately indifferent (i.e., clearly unreasonable); and (3) as a result of the district’s deliberate indifference, it subjects its students to sex discrimination in its education programs and activities.

Actual Knowledge

The regulations require all public-school districts to respond whenever any employee has notice of sexual harassment. Incidents must be reported to the district’s Title IX Coordinator.

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Initiation of Grievance Process

Formal complaints that initiate the grievance process can only be filed by an alleged victim or the Title IX Coordinator. However, at the time of making a complaint, an alleged victim must be participating in or attempting to participate in the district’s education program or activity. This means a district will have discretion not to initiate the Title IX grievance process for complaints made by former students or employees.

Detailed Investigation, Determination, and Appeal Requirements and Procedures

The final regulations, including the detailed investigation, determination, and appeal requirements and procedures, apply to complaints against both students and employees. Those districts who presently utilize more different procedures for addressing concerns of sexual harassment by employees and students respectively will now be required to comply with the processes specified in the regulations.

Record Preservation and Training

The regulations impose record preservation requirements that many districts are likely ill-prepared to handle without significant investment in technology and training. Furthermore, all institutions must publish training materials received by all institutional Title IX actors.

Informal Resolution

The regulations allow for the use of dispute resolution measures, such as mediation or restorative justice, if the parties voluntarily consent to such informal resolution in lieu of a formal investigation and hearing.

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Definition of Sexual Harassment

The regulations define sexual harassment to include three types of misconduct on the basis of sex: (1) quid pro quo harassment by a school district employee; (2) any unwelcome conduct that a person would find so severe, pervasive and objectively offensive that it denies a person equal educational access; and (3) any instance of sexual assault (as defined in the Clery Act), dating violence, domestic violence, or stalking as defined in the Violence Against Women Act (“VAWA”).

Requirements of Title IX Final Regulations

Sexual Harassment Occurring in a School District’s “Education Program or Activity” and “in the United States”

Under the regulations, school districts must respond when sexual harassment occurs in the district’s education program or activity, against a person in the United States.

“Education programs or activities,” under the regulations, include locations, events or circumstances over which a school district exercises substantial control over both the respondent and the context in which the sexual harassment occurred. Title IX applies to all of a school district’s education programs and activities, whether such program or activity occurs on-campus or off-campus.

Accessible Reporting to Title IX Coordinator

School districts must ensure their educational communities know how to report possible incidents to the Title IX Coordinator, including notifying students and employees of the Title IX Coordinator’s contact information and prominently displaying the required contact information on district websites.

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Procedures for Reporting to Title IX Coordinator

The regulations also provide detailed procedures for reporting sex discrimination to the Title IX Coordinator, including allowing reporting in-person, by mail, by telephone, or by e-mail using the contact information listed for the Title IX Coordinator on the district’s website, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report (e.g. online reporting portal). Policies and practices must permit reports to be made at any time, including during non-business hours.

School District’s Mandatory Response Obligation

School districts have several mandatory response obligations under the regulations, including offering supportive measures to the alleged victim or “complainant,” having the Title IX Coordinator contact the complainant to discuss the availability of supportive measures, following a grievance process that complies with the regulations, investigation of sexual harassment allegations in any formal complaint, and dismissal of complaints where the allegations do not meet the definition of sexual harassment under Title IX.

When responding to sexual harassment, the regulations provide clear definitions of complainant, respondent, formal complaint, and supportive measures, which school districts may consider adopting in its policies and procedures.

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Grievance Process

The regulations prescribe some overarching principles that must be followed during the grievance process and corresponding training and policy requirements. They include: (1) Treating complainants equitably by providing remedies any time a respondent is found responsible and treating respondents equitably by not imposing disciplinary sanctions without following the grievance process; (2) remedies, which are required to be provided to a complainant when a respondent is found responsible must be designed to maintain the complainant’s equal access to education and may include the same supportive measures; however, remedies need not be non-disciplinary or non-punitive and need not avoid burdening the respondent; and (3) require objective evaluation of all relevant evidence, inculpatory and exculpatory, and avoidance of credibility determinations based on a person’s status as a complainant, respondent, or witness.

To ensure these principles are followed within the grievance process, the regulations require training in the following forms:

  1. All Title IX personnel (Title IX Coordinators, investigators, decision-makers, people who facilitate any informal resolution process) must be trained to be free from conflicts of interest or bias for or against complainants or respondents.
  2. Training must include the definition of sexual harassment in the regulations, the scope of the school district’s education program or activity, how to conduct an investigation and grievance process including hearings (optional for K-12), appeals, and informal resolution processes, as applicable, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias.
  3. A school district must ensure that decision-makers receive training on any technology to be used at a live hearing, which only applies to K-12 schools where that district has decided to conduct hearings.
  4. A school district’s decision-makers and investigators must receive training on issues of relevance, including how to apply the rape shield protections provided only for complainants.

To demonstrate compliance with the grievance process, the regulations require school districts to post materials used to train Title IX personnel on their websites, including reasonably prompt timeframes for the conclusion of the grievance process, the range of possible remedies and disciplinary measures a school district may provide to a complainant or impose upon a respondent, and the evidence standard for all formal complaints.

School districts must also describe their appeal procedures and the range of supportive measures available for complainants and respondents, use a grievance process that does not use, rely on or seek disclosure of information under a legally recognized privilege, and assure that all procedures apply equally to both parties.

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The regulations require that districts investigate allegations in any formal complaint and send written notice to both parties (complainants and respondents) of the allegations.

The regulations contain extensive investigatory procedures, which include requirements regarding the presentation of evidence, the opportunity for parties to be represented by an advisor or an attorney, and notice for interviews, meetings, and hearings (if applicable).

The regulations outline required and permissible actions by the district in terms of processing of the complaint. While schools must dismiss allegations of conduct that do not meet the regulations’ definition of sexual harassment or did not occur in a school’s education program or activity against a person in the U.S., schools may, in their discretion, dismiss a formal complaint or allegations therein if the complainant informs the Title IX Coordinator in writing that the complainant desires to withdraw the formal complaint or allegations therein.

Schools must also give the parties written notice of a dismissal (mandatory or discretionary) and outline the specific reasons for the dismissal. Schools may consolidate formal complaints where the allegations arise out of the same facts.

The regulations permit districts to place respondents who are employees on administrative leave during the pendency of an investigation. The regulations also permit removal of a student respondent from the education program or activity on an emergency basis, provided that the district conducts an individualized safety and risk analysis and determines that emergency removal is necessary in order to protect a student or other individual from an immediate threat to physical health or safety. A district must also provide the respondent with notice and an opportunity to challenge the decision immediately after the removal.

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Hearings & Question Submissions by Parties

The regulations clarify that live hearings are optional for K-12 schools. If the district chooses to provide such hearings, there are very strict requirements that must be outlined and followed.

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.

The regulations provide rape shield protections for complainants, deeming irrelevant questions and evidence about a complainant’s prior sexual behavior, unless offered to prove that someone other than the respondent committed the alleged misconduct or offered to prove consent, irrelevant.

Standard of Evidence & Written Determination

The regulations require that districts select the standard of evidence to determine responsibility within grievance process (preponderance of the evidence or clear and convincing).

It is worth noting that whichever standard the district selects for this process, it must apply to all formal complaints of sexual harassment whether the respondent is a student or an employee (including tenured employee).

The decision-maker (who cannot be the same person as the Title IX Coordinator or the investigator) must issue a written determination regarding responsibility, including: (1) findings of fact; (2) conclusions regarding whether the alleged conduct occurred; (3) rationale for the result as to each allegation; (4) any disciplinary sanctions imposed on the respondent; and (5) 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.

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The final regulations require districts to adopt an appeal procedure.

Specifically, district policies 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: (1) procedural irregularity that affected the outcome of the matter; (2) newly discovered evidence that could affect the outcome of the matter; and/or (3) Title IX personnel had a conflict of interest or bias, that affected the outcome of the matter.

A district may choose to offer an appeal equally to both parties on additional bases.

Informal Resolution

The regulations permit districts 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.

A school may not require as a condition of enrollment or continuing enrollment, or employment or continuing employment, or enjoyment of any other right, waiver of the right to a formal investigation and adjudication of formal complaints of sexual harassment. Similarly, a school may not require the parties to participate in an informal resolution process and may not offer an informal resolution process unless a formal complaint is filed.

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Retaliation Prohibited

The regulations expressly prohibit retaliation and provide some examples of what does and does not constitute retaliation.

Records Preservation

The regulations require a district to maintain the complete records of each phase relating to the resolution of a formal complaint for a period of seven years, including any records of informal resolution. School districts should include the record preservation requirements within their policies.

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What This Means for You

This blog has identified numerous areas of regulatory changes that will require a thorough analysis of existing policies. School districts should become familiar with these regulations to ensure compliance by the August 14, 2020 effective date. If you have concerns about your policies in light of the new Title IX regulations, contact John Borkowski, Aleks Rushing, Skye Parr, Catarina Colon, or your Husch Blackwell education attorney.