New Title IX Harassment Rules Took Effect in August

Is your district in compliance?

On August 14^th, while school districts were busy installing clear dividers on lunchroom tables and figuring out how to teach kindergarteners through a screen, new Title IX regulations went into effect. Secretary of Education Betsy DeVos proposed the changes in November 2018, saying that they would provide due process rights for students accused of sexual misconduct, while providing consistency for accusers. After a lengthy comment period and rulemaking process, the final rules were released in May 2020 and are now in effect.

The new rules fundamentally change the assumptions and expectations surrounding sexual harassment at school. The previous standard had required schools to act if they “reasonably should” have been aware of harassment, and set a “preponderance of the evidence” standard for finding that harassment had occurred. New rules change that to “actual knowledge” (such as a student or parent filing a report) and allow schools to set a “clear and convincing evidence” standard instead.

Changes for K-12 schools, where hearings may be held but are not required, are less sweeping than those at the university level, but they will still require districts to rewrite policy manuals and train all employees on the new regulations. 

The Definition: What Constitutes Sexual Harassment, and When Must Schools Respond?

One fundamental change is a more quasi-judicial approach to handling harassment claims. The new definition of sexual harassment under Title IX comes from the Supreme Court: unwelcome conduct on the basis of sex that is so “severe, pervasive, and objectively offensive” that it denies a person access to the education program or activity. The new definition also includes quid pro quo sexual harassment by employees (faculty or staff) and sexual assault, dating violence and stalking.

Schools are required to respond in a way that is not “deliberately indifferent,” and only if they have actual knowledge of the alleged harassment and the behavior occurred on campus or at an off-campus activity where the school “exercised substantial control over both the respondent and the context,” such as a football game or school trip. They are required to dismiss any complaints that don’t meet the definition or didn’t occur within their programs, such as online harassment that’s not on a school platform.

Parents and guardians may file harassment complaints for their children, and parents must be notified when their child is accused.

Timelines are now flexible. There is no specific deadline for responding, except that schools must be “reasonably prompt.”

The Investigation: Separate Decision-Maker, Optional Hearings

Instead of allowing a single person to receive, investigate and decide on disciplinary sanctions, schools must now assign separate officials to manage individual aspects of Title IX harassment complaints. First, there must be a Title IX coordinator to receive complaints; second, an investigator to research the facts and interview both the complainant and the accused; and lastly, a decision maker to make the final determination and assign penalties or remedies.

School districts must also now decide on an evidence standard to use in investigations. Whether to use a “preponderance of the evidence” standard, as previous guidance held, or to set a stricter “clear and convincing” evidence threshold must be determined and, whichever definition is used, the same standard must apply to all complaints, whether they involve students or employees. A well-defined appeals process is also now a requirement for investigation.

Unlike colleges and universities, elementary and secondary schools are not required to conduct live hearings. Districts should nevertheless follow a consistent, well-documented process for all investigations, maintaining a presumption of innocence and providing an opportunity to test the credibility of witnesses.

Policies, Processes and Preparation

The new Title IX regulations are complex and very different from previous guidance. New harassment definitions and the end of the single-investigator model are only a few of the changes that schools will have to digest and accommodate. They must develop new policies, train staff to follow them without prejudgment, post the training materials on their websites, and ensure that the new policies are communicated to students and parents.

If your school district has not created new policies, assigned different officials to manage the three key phases of response, trained staff and published those training materials, then it may be time to seek help in getting into compliance.

If you have questions about how to meet the new Title IX requirements, or would like assistance, Weaver can help. Our risk advisory and compliance professionals can help you develop processes that fit your organization, people and culture. To find out more, visit weaver.com or contact us for a free consultation. 

© 2020