On May 6, 2020, the U.S. Department of Education (“ED” or “the Department”) released the long-anticipated final Title IX regulations, which have a significant impact on schools all across the country—both K-12 and higher education institutions. This post identifies some of the key differences between requirements for K-12 and higher education institutions, as provided in the final regulations and related comments from the Department.

Interested in learning more? Join us December 3 and 4, 2020, for two half-day training sessions on Sexual Harassment and Sexual Assault in K-12 Schools – Title IX Compliance and Response to New Regulations. Register here.

Live Hearings

 In K-12 education, live hearings are optional where there are formal complaints of sexual harassment that are not resolved or dismissed; schools may choose to have a hearing model in their policies, but it is discretionary and not required.

In higher education, on the other hand, live hearings are required in cases where there is a formal complaint of sexual harassment that is not resolved or dismissed prior to a hearing.

“Actual Knowledge” (Triggers Institutions’ Response Obligations)

In K-12 education, “actual knowledge” occurs when any employee or official has notice of sexual harassment in the school’s education programs or activities—in that the employee knew or should have known (e.g., through observation, overhearing conversations of uninvolved individuals, or receiving a complaint). Note: the preamble to new regulations specifies that K-12 school officials include “peripheral” officials, such as coaches and school bus drivers.

In higher education, “actual knowledge” occurs when: an institutional official, with authority to take corrective action, observes, or receives a report of, sexual harassment occurring in the institution’s education programs or activities.

Parental/Guardian Involvement in the Process

In K-12 education, parents/guardians have a legal right to act on behalf of a student in exercising Title IX rights, which includes the right to act for a student as a party or witness. The right of a parent/guardian applies throughout all aspects of a Title IX matter, from reporting sexual harassment to considering appropriate and beneficial supportive measures, and from choosing to file a formal complaint to participating in the grievance process.

In higher education, generally, student permission is required to involve a parent or guardian in the process.

 Emergency Removals (Interim Suspensions)

 Under the new Title IX regulations, emergency removals/interim suspensions are permitted in limited circumstances, where a respondent poses an immediate threat to the physical health or safety of any student or other individual, and justification for removal arises from allegations of sexual harassment. In both K-12 and higher education, institutions must respect disability rights under Section 504 and the ADA. K-12 institutions must use care to respect the parties’ added rights provided by the IDEA (for a free and appropriate public education).

Supportive Measures

 The regulations provide that supportive measures are those that are considered non-punitive, non-disciplinary measures that do not unreasonably burden the respondent. The Department clarified that K-12 schools may implement alternative assignments (in circumstances not calling for emergency removal) where they are non-disciplinary, non-punitive, and do not unreasonably burden the respondent. Regarding behavioral interventions, the regulations explain how “many common actions by school officials designed to quickly intervene and correct behavior are not punitive or disciplinary.” 34 C.F.R. §§ 106.30, 106.44; preamble to the new regulations at 30182-83 (providing examples of educational conversations, sending students to principal’s office, or changing seating/class assignments as not being inherently punitive or disciplinary, in contrast to expulsions or suspensions).

What this Means to You

 For a more in-depth analysis on Title IX: Takeaways from Final Regulations and Comments from the Department related to K-12 Education please click here for our prior post.

This blog has identified regulatory differences in the Title IX process for K-12 education and higher education institutions that will require a thorough analysis of existing policies. If you have concerns about your policies, procedures, or practices in light of the new Title IX regulations and guidance, contact John Borkowski, Annie Cartwright, Aleks Rushing, or your Husch Blackwell education attorney.