The U.S. Department of Education issued the first revision to its Title IX regulations in 45 years (the “Regulations”).  The regulations go into effect August 14, 2020 and make sweeping changes in the way that elementary and secondary schools must investigate and address claims of sexual harassment.  Going forward, how K-12 schools address allegations of sexual harassment and assault will closely mirror the way colleges must address these issues, including formalizing the investigation process, separating the functions of the investigator and decision maker, enhancing due process rights for alleged perpetrators and emphasizing interim support measures for both the alleged victim and perpetrator.  Will your district be ready come August?  

The Regulations largely focus on three areas: (1) changes or additions required to be included in the district’s sexual misconduct policies, (2) new requirements for how to conduct investigations into alleged sexual misconduct, and (3) new procedures for resolution of allegations of sexual misconduct.  Today’s post will address updated definitions and notice requirements contained in the Regulations.  Additional posts over the next few days will address grievance procedures, investigation and resolution of complaints, and enhanced due process requirements for alleged perpetrators.

When Does Title IX Apply?

Title IX states that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial aid.”  An “education program of activity” includes those programs and activities over which the school exercises substantial control, whether the program or activity occurs on or off campus.  The regulations make clear that Title IX applies not only to public schools but to preschools and private elementary and secondary schools that receive federal financial aid. 

The “New” 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 employee (i.e. conditioning of an aid, benefit, or service on the individual’s participation in unwanted sexual conduct),

(2) hostile educational environment (i.e. unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies the person equal access to the district’s education program or activities), or

(3) sexual assault (as defined by the Clery Act), dating violence, domestic violence or stalking (as defined by the Violence Against Women Act). 

Interestingly, the regulations depart from Title VII’s definition of a hostile work environment, which defines sexual harassment as conduct that is severe or pervasive and requires a finding of a hostile educational environment to include conduct is that both severe and pervasive. 

The Regulations place a strong emphasis on the alleged perpetrator’s First Amendment rights noting that where the alleged harassment consists of speech or other expressive conduct, schools must balance Title IX enforcement with respect for free speech. 

Notice Requirements

Each district must designate at least one employee to coordinate its efforts to comply with Title IX and that employee must be referred to as the “Title IX Coordinator.” 

The district must notify all applicants for admission and employment, students, parents or legal guardians of elementary and secondary school students, employees, and collective bargaining units of the “name or title, office address, electronic mail address, and telephone number of the employee or employees” designated as the Title IX Coordinator. 

The district also must provide notice to the above-listed persons that the district does not discriminate on the basis of sex in education programs or activities that it operates.  This non-discrimination statement and the contact information for the Title IX Coordinator must be prominently displayed on the district’s website and in each handbook and catalog.

Title IX Still Applies to Other Situations of Sex Discrimination Beyond Sexual Harassment

While the new regulations mostly focus on how school districts must address claims of sexual harassment, Title IX’s other nondiscrimination requirements remain in full force.  These include requirements such as equity in sports and educational programs. 

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