Earlier this month, the U.S. Department of Education, Office for Civil Rights (OCR) issued a Final Rule regarding Title IX. This Final Rule went through a significant period of public comment prior to being released, and goes into effect on August 14, 2020. These changes focus on addressing complaints of sexual harassment in the educational setting.
For the first time, the Title IX regulations define “sexual harassment” and also outline the procedures schools (both post-secondary and K-12) must follow to address and respond to allegations of sexual harassment.
New Definition of “Sexual Harassment”
The Final Rule states that sexual harassment is conduct on the basis of sex that satisfies one or more of the following:
An employee of the school conditioning a provision of an aid, benefit, or service of the school on an individual’s participation in unwelcome sexual conduct;
Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity; or
Meets federal definitions of “sexual assault”, “dating violence”, “domestic violence,” or “stalking”.
Breaking down the definition, the second element of the definition has been notably changed from prior OCR guidance. Previously the behavior had to be severe, pervasive, or persistent and interfere with or limit a student’s ability to participate in or benefit from school services or activities. Now, the definition states that the behavior must be severe, pervasive, and objectively offensive that it effectively denies a person’s equal access to the school’s education program or activity. Another notable change is that OCR now defines certain conduct that automatically meets the definition of “sexual harassment,” without having to analyze the conduct under the second element of the definition. The first and third elements of the definition (quid pro quo sexual harassment from a school employee to a student and certain specific instances of assault, violence, or stalking based on the federal definitions) are presumed to be severe, pervasive, and objective offensive that they deny equal access to the school’s education program or activity.
Title IX Coordinator
The Final Rule also clarifies that schools must have a “Title IX Coordinator” (and use that specific title). While schools have always been required to designate an employee for Title IX compliance, the Final Rule requires that the Title IX Coordinator not only be designated to coordinate compliance with Title IX, but also authorized to do so. This likely requires districts to review the Title IX Coordinator’s role to ensure he or she has sufficient authority to coordinate the district’s compliance with Title IX, particularly given the new standards and requirements.
When School Must Act - “Actual Knowledge” of Harassment
The next major change relates to when a school is required to act in response to sexual harassment allegations. Under the Final Rule, a school is required to respond promptly and in a manner that is not deliberately indifferent when it has “actual knowledge” of the sexual harassment. This is a change from OCR’s prior guidance in which a school had a responsibility to respond promptly and effectively if a school “knew or should have known” about sexual harassment. Previously, the standard of notice was much lower (even if a school did not have actual knowledge, it could be liable if it should have known about the conduct) and it also required the school to respond “effectively” rather than “not deliberately indifferently” (a much lower standard), as the new Rule states.
OCR outlined what constitutes “actual knowledge”: when notice of sexual harassment or allegations of sexual harassment are provided to:
The school’s Title IX Coordinator;
An official of the district who has authority to institute corrective measures on behalf of the district; or
Any employee of an elementary or secondary school.
For K-12 institutions, the “actual knowledge” definition is met more easily based on the fact that notifying any employee of an elementary or secondary school constitutes actual knowledge by the school district.
Formal Complaint Process
While schools must respond as described above (promptly and not deliberately indifferently) when there is “actual knowledge” of sexual harassment, the Final Rules also outline the specific response required when a Formal Complaint is filed. A Formal Complaint is specifically defined as either: (a) a document filed by a complainant (specifically defined now as the alleged victim of the harassment); or (b) a document signed by the Title IX Coordinator that alleges sexual harassment and requests that the district investigate. Formal Complaints cannot be filed by third parties, although third parties can still report sexual harassment which could put the district on notice of the sexual harassment and be considered “actual knowledge.”
Whether the district is considered to have “actual knowledge” of the harassment or a Formal Complaint is filed, the Final Rules outline the required initial response. The Title IX Coordinator must promptly, even if no formal complaint is filed:
Contact the complainant to discuss the availability of “supportive measures”;
Consider the complainant’s wishes with respect to supportive measures; and
Explain the process for filing a formal complaint.
“Supportive measures” are also defined in the Final Rule as non-punitive, individualized services, offered as appropriate and without charge to a complainant or a respondent before or after the filling of a Formal Complaint, or where no complaint has been filed. The measures should be designed to restore or preserve equal access to the education program or activity without “unreasonably” burdening the other party. OCR outlined that these could be counseling, course modifications, schedule changes, or increased monitoring or supervision.
Importantly, OCR clarified that schools must treat complainants and respondents (persons reported to be the perpetrators of conduct that could constitute sexual harassment) equitably. This means that supportive measures must also be offered to respondents and the Title IX grievance process must be followed before the school may discipline or sanction the respondent. Given this requirement, utilizing a supportive measure that completely removes a respondent from an education program or activity may be considered punitive. Additionally, the fact that most schools have student codes of conduct that prohibit conduct that overlaps with the conduct at issue in sexual harassment investigations can make it challenging to ensure it is clear that, if a student is disciplined for the same conduct prior to the completion of the Title IX grievance process, the discipline is specifically for a code of conduct violation and that he or she is not being disciplined for sexual harassment under Title IX. This is one major area where K-12 institutions must be very careful with documentation and explanations of disciplinary actions.
There are two exceptions to the prohibition against disciplining or sanctioning a respondent prior to the completion of the Title IX grievance process. The first is an “immediate emergency removal” which must be based on an individualized safety and risk analysis and be deemed necessary to protect a student or other individual from immediate threat to physical health or safety. When a respondent is emergency removed, he or she must be given notice and an immediate opportunity to challenge the removal. The second exception allows for “employee administrative leave” to the extent permitted under state law, board policy, and/or collective bargaining agreements.
Investigation Steps
The next important change is that the Final Rule outlines specific steps for investigating, dismissing, and determining responsibility for Formal Complaints. This is a change from the prior stance of OCR which allowed schools discretion to outline their own policies and practices for complaint resolution. Schools are now required to take the following steps for investigating, dismissing, and determining responsibility in response to a Formal Complaint:
Provide written notice to all known parties that includes notice of the grievance process; notice of the allegations with sufficient detail to allow the respondent to prepare a response; a statement that the respondent is presumed not responsible for the conduct and that that responsibility will be determined at the completion of the grievance process; notice of the parties’ right to an advisor and to review evidence; and notice of any provision of the school district’s code of conduct that prohibits knowingly providing false information or statements during the grievance process.
Have mandatory and discretionary reasons for dismissal of a Formal Complaint. Schools must dismiss a Formal Complaint if: (a) the alleged conduct does not constitute sexual harassment, even if true; (b) the conduct did not occur in the school’s program or activity; or (c) the conduct did not occur in the United States. Schools are permitted to dismiss a Formal Complaint if: (a) the complainant requests to withdraw; (b) the respondent’s enrollment or employment ends; or (c) specific circumstances prevent the district from gathering sufficient evidence to reach a decision. If the district dismisses a complaint, it must provide written notice promptly to both parties simultaneously, including the reasons for mandatory or discretionary dismissal.
During the entirety of the investigation and grievance process, the district must ensure the following requirements are met:
Ensure that the burden of proof and of gathering evidence rests on the district and not on the parties, except that certain treatment records cannot be obtained without voluntary, written consent from the party (if over 18) or the parent;
Provide an equal opportunity for the parties to present witnesses and other evidence;
Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence;
Provide the parties with the same opportunities to have others present during interviews or other related proceedings, including an advisor who may but is not required to be an attorney;
Provide the parties with the same opportunities to have others present during any grievance proceeding, including the opportunity to be accompanied by an advisor of their choice, who may be, but is not required to be, an attorney; yet, the district may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties;
Provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate;
Provide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations, including the evidence upon which the district does not intend to rely in reaching a determination and inculpatory or exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to conclusion of the investigation. Prior to completion of the investigative report, the district must send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy, and the parties must have at least 10 days to submit a written response, which the investigator will consider prior to completion of the investigative report. The recipient must make all such evidence subject to the parties’ inspection and review available at any hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination;
Prepare an investigation report that fairly summarizes relevant evidence and, at least 10 days prior to a hearing (if a hearing is provided) or other time of determination regarding responsibility, send to each party and the party’s advisor, if any, the investigative report in an electronic format or a hard copy, for their review and written response.
Live hearings are now required for post-secondary institutions, but not for K-12 schools. Yet elementary and secondary schools may choose to conduct live hearings. Even without a hearing, the district must provide each party with the opportunity to submit written questions that it wants asked of another party or witness after the investigation report is complete.
When determining responsibility, there are now specific requirements and standards. First, the decision-maker cannot be the individual who conducted the investigation or the Title IX Coordinator. The decision maker must apply the district’s standard of evidence and issue a written determination to both parties simultaneously that:
Identifies the allegations potentially constituting sexual harassment;
Outlines the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
Lists the findings of fact supporting the determination;
Identifies the conclusions regarding the application of the district’s code of conduct to the facts;
Includes a statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the recipient imposes on the respondent, and whether remedies designed to restore or preserve equal access to the district’s education program or activity will be provided by the district to the complainant; and
Outlines the district’s procedures and permissible bases for the complainant and respondent to appeal.
Appeal Process and Additional Considerations
There is also now a requirement that schools offer an appeal process. Both parties have the right to appeal a determination of responsibility and the district’s dismissal of a complaint for any of the following reasons: (a) a procedural irregularity that affected the outcome; (b) new evidence that was not available at the time of the determination and could affect the outcome; or (c) conflict of interest on the part of the Title IX Coordinator, investigator, or decision maker that affected the outcome. The decision maker for the appeal cannot be the Title IX Coordinator, investigator, or initial decision maker, and also must not have a conflict of interest or bias generally or related to the particular complainant and respondent. The appeal decision maker must also receive specific training. In K-12 schools, these appeals may be made to the board of education.
Schools also cannot use informal processes to address sexual harassment complaints unless a Formal Complaint has been filed and the district provides both parties written notice of rights to an investigation, obtains the parties’ written, voluntary consent, and does not offer informal resolution in the context of a complaint alleging that an employee harassed a student.
There are also new and extensive record keeping requirements related to all matters involving sexual harassment complaints and investigations.
Training
A school district must ensure that Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, receive training on:
the new definition of sexual harassment;
the scope of the district’s education program or activity;
how to conduct an investigation and grievance process including hearings, appeals, and informal resolution processes, as applicable; and
how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias.
Decision-makers at any stage of the grievance process must receive training on any technology to be used at a live hearing (if conducted) and on issues of relevance of questions and evidence, including when questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant.
Anyone conducting investigations under Title IX must also receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence.
Any materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process must not rely on sex stereotypes and must promote impartial investigations and adjudications of formal complaints of sexual harassment.
Given the new and extensive Title IX requirements, districts must take steps prior to August 14, 2020 to enact new policies and regulations to incorporate these major changes.