By Attorneys Rebecca Reif and Miriam Van Heukelem
On May 6, 2020, the United States Department of Education released final regulations under Title IX, the federal law which prohibits discrimination on the basis of sex in education programs or activities receiving federal financial assistance. These highly-anticipated final regulations are scheduled to become effective on August 14, 2020, and arrive amidst already complicated and unpredictable times for school districts and institutions of higher education due to COVID-19.
The final regulations include the following notable changes and clarifications to Title IX:
* The definition of "sex discrimination" under Title IX will expressly include sexual harassment, sexual assault, dating violence, domestic violence, and stalking. The latter three concepts are familiar to institutions of higher education under the Clery Act but are new to the K-12 setting.
* Schools will only have an obligation to act when they have "actual knowledge" of sexual harassment. For all schools, a report of alleged sexual harassment to a Title IX Coordinator will constitute "actual knowledge." Additionally, for K-12 schools, a report of sexual harassment to any employee will constitute "actual knowledge," and for colleges and universities, a report to "an official with authority to take corrective action," will constitute actual knowledge. In addition, schools will only be liable under Title IX for "deliberate indifference" (meaning acting clearly unreasonably in light of known circumstances) for the school's response, or lack of response, to sexual harassment.
* Title IX jurisdiction will be misconduct which "occur[s] within a school's own program or activity" within the United States, including any building owned or controlled by a student organization officially recognized by a postsecondary institution. This definition will exclude study abroad programs, but will include fraternities, sororities, or other organizations sponsored, affiliated, or recognized by a school.
* The regulations contain specific procedural requirements for the informal and formal resolution of Title IX complaints. For colleges and universities, formal complaints will require a live hearing, in which cross-examination is allowed by advisors for the parties, with protections consistent with rape shield laws and avoiding personal confrontation.
* The final regulations also contain relatively extensive affirmative requirements to create and maintain records for seven years of trainings, sexual harassment reports, supportive measures, investigations, informal resolutions, etc. Training materials for some participants in the school's Title IX process will also need to be made public on the school's website, or upon request by a member of the public.
In order to provide more extensive information and discussion on the new Title IX final regulations, Ahlers & Cooney will be holding a live, 90-minute webinar on Tuesday, May 12, from 10:30-noon. A separate registration invitation will be going out to all clients, or you can contact Tamara at firstname.lastname@example.org for registration information.
U.S. Department Overview: https://www2.ed.gov/about/offices/list/ocr/docs/titleix-overview.pdf
Complete Copy of Regulations: https://www2.ed.gov/about/offices/list/ocr/docs/titleix-regs-unofficial.pdf
Questions on this ruling, please contact any of the attorneys in the firm's Employment Law Practice Group.