Schools must comply with new Title IX regulations

The past six months have been particularly challenging for school districts – with urgent demands to quickly design new learning options and ensure that facilities meet new safety standards – so some may not have had the time and resources to tackle full implementation of new regulations under Title IX.

The following information is intended to assist with local compliance efforts.

Title IX prohibits discrimination on the basis of sex, including sexual harassment, in all education programs and activities that receive federal financial assistance, including K-12 schools. The 2020 Title IX regulations, announced by the U.S. Department of Education on May 6 and effective on Aug. 14, focus exclusively on handling sexual harassment complaints.

To comply with the new regulations, schools need to assign additional staff to handle sexual harassment complaints; make extensive changes to their policies, practices and procedures; and provide prescribed training to Title IX and all other school staff.

The following is a summary of the changes, but local and school officials are advised to speak with their district’s legal counsel for guidance.

New staff roles
The new regulations require each district to have an assigned individual in each of the following roles. Additionally, the same individual cannot hold multiple roles in an individual case.

• Title IX Coordinator – at the district level, to oversee the implementation of sexual harassment policy and other Title IX compliance issues
• Deputy Coordinator(s) (optional) – at building or school level
• Investigator(s)
• Decision-Maker (individual or panel with a chair)
• Appeal Officer

Schools can consider pooling resources/positions with other nearby schools or outsourcing certain positions until the district develops its own internal capacity.

Policies, practices and procedures
The new definition of “sexual harassment” includes sexual harassment, sexual assault, domestic violence, dating violence, and stalking.

The new regulations are applicable to all types of sexual harassment in schools, including employee-on-student, student-on-student, and employee-on-employee.

Other key regulatory changes relate to the following:
• Required notice to school and notice to parties
• New grievance process and procedures
• Jurisdictional issues and mandatory dismissals
• Formal investigations
• Decision-making and optional hearings

Schools must adopt and publish detailed grievance procedures to respond to formal complaints, which are those that are signed by the complainant or the Title IX coordinator, and request that the school investigate the alleged sexual harassment.

The grievance process must state the evidentiary standard required to determine responsibility under the school’s policy – either preponderance of the evidence or clear and convincing evidence. The school must use the same standard for complaints against both students and employees, and for all formal complaints of sexual harassment.

Even if a formal complaint is not filed, a school is mandated to respond once it has “actual knowledge” of sexual harassment. Actual knowledge includes when any school employee (not just the Title IX coordinator or principal) has notice of the alleged sexual harassment.

Formal complaints of student-on-student harassment may be resolved informally (i.e., through mediation or restorative justice), but incidents involving alleged staff-on-student harassment must go through the formal grievance process.

Once notified of an alleged incident, the school must offer the complainant supportive measures (such as counseling, deadline extensions, security), regardless of whether the individual has filed a formal complaint, and must inform the complainant about how to file a formal complaint.

All formal complaints must be investigated. At least 10 days before completion of the investigator’s written report, the school must send each party the evidence obtained as part of the investigation. The parties must be given an opportunity to respond in writing to the investigator. The investigator’s final report is then submitted to the decision-maker.

The decision-maker must allow the parties an opportunity to submit written, relevant questions to one another and to respond in writing. The decision-maker then must issue a written determination regarding responsibility that includes factual findings, conclusions, rationale and disciplinary sanctions, if any. Following this decision, the school must offer both parties appeal rights.

All schools must incorporate these new changes into their Sexual Harassment Policy and Procedures. A recommended best practice is to adopt and implement interim sexual harassment policies and procedures and make them renewable for six-month intervals.

Training requirements
To maintain compliance, all employees must be trained to immediately report actual or alleged sexual harassment or retaliation to the Title IX coordinator. Schools must ensure that Title IX coordinators, investigators, decision-makers, appeal decision-makers and facilitators of informal resolutions remain unbiased and receive prescribed training. All training materials must be publicly available.

Required topics for training include definitions, investigations, decision-making, evidence, credibility, bias and conflicts of interest.

School districts must determine the best staffing structure for their district; revise and publish interim sexual harassment policies and procedures to incorporate 2020 changes; provide specific training; and widely publish and disseminate contact information to students, parents/guardians, unions and all employees.

Compliance with the updated policies is mandatory. It is time-consuming and costly, but less so than litigation.

For more information, visit the Department of Education’s Title IX policy web page.

Written by Attorney Judy Levenson, Special Counsel to MIIA, and Lin Chabra, MIIA Member Training Manager.