On May 6, 2020, the U.S. Department of Education released long-awaited new regulations implementing Title IX, the federal law that prohibits sex-based educational discrimination in schools receiving federal financial assistance. Schools are still responsible for appointing a Title IX Coordinator and for promptly and equitably investigating incidents of sex-based discrimination, including sexual harassment. But now, Title IX investigations are subject to a plethora of standards and procedures that differ markedly from those recommended in previous federal guidance and case law. The new regulations, which carry the full force of law, take effect on August 14, 2020.
Below we spotlight a few of the most significant changes in the regulations for K-12 school officials. Thrun attorneys will also provide an overview of the key changes at a free webinar for retainer clients on Wednesday June 3, 2020 from 10:00 to 11:00 a.m. Clients can register for that webinar here:
This webinar will provide an overview of significant changes and is not intended to be a substitute for the comprehensive training required for administrators or the basic training necessary to inform staff of their reporting obligations.
Significant Title IX regulatory changes include:
Sexual Harassment Defined
The new regulations define the term through three examples of sex-based misconduct: (1) an employee conditioning the provision of an aid, benefit, or service on the student’s participation in unwelcome sexual conduct (i.e., quid pro quo); (2) unwelcome conduct on the basis of sex that a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal educational access to a school’s program or activities; or (3) sexual assault, dating violence, domestic violence, or stalking. The above definition purposely differs in part from the Title VII workplace standard (severe or pervasive conduct creating a hostile work environment) and represents an attempt to exclude expressions protected by free speech and academic freedom.
Actual Knowledge Expanded
Previously, the U.S. Supreme Court established that a school was liable for sexual harassment if an “appropriate person” (i.e., a school official with sufficient authority to take corrective action) had actual knowledge of sexual harassment and acted with deliberate indifference. The new regulations clarify that actual knowledge is not limited to a school official. Now, whenever any elementary or secondary school employee (e.g., teacher, counselor, cafeteria worker, or custodian) has notice of sexual harassment, a school must respond and investigate. Even if a board policy requires employees to report allegations to the Title IX Coordinator, a report to any school employee can trigger liability for the school. All school employees should undergo some form of Title IX training to gain familiarity with this important responsibility.
The new regulations make many changes to the Title IX investigation process. Written notice containing certain specific information must be provided to both parties. Before an investigation report is finalized parties must have at least 10 days to review and respond to all evidence directly related to the allegations. A completed investigation report must be provided to parties at least 10 days before any hearing. After receiving the completed report, schools now must allow both parties to submit written, relevant questions for the other party or any witness, to review answers to the questions, and to provide limited follow-up questions.
Thrun Comprehensive Training for Administrators
Thrun will host a 3-hour comprehensive training webinar later this summer for administrators who may be investigators, Title IX coordinators, or decision-makers in the new process. If you are interested in being notified when additional details about this administrator training become available please contact email@example.com to be added to the list. We can also bring our training sessions (virtually for now) directly to your school.
Finally, if you are interested in a Thrun module for all staff on their new Title IX obligations (similar to Thrun’s emergency seclusion and restraint awareness training), please contact firstname.lastname@example.org.