New Title IX Regulations Create Sweeping Changes for School Districts’ Responses to Sexual Harassment Complaints and Investigations

On May 6, 2020, the U.S. Department of Education (“the Department”) issued new final regulations under Title IX of the Education Amendments of 1972 (“Title IX”), which prohibits discrimination on the basis of sex in education programs or activities receiving federal financial assistance. The new regulations, which make sweeping changes to the existing Title IX regulations, are effective August 14, 2020. This Legal Update will review the major provisions of the new regulations and their impact on K-12 school districts’ policies and procedures governing sexual harassment investigations.

Background. Under Title IX, discrimination on the basis of sex includes sexual harassment and sexual violence, such as rape, sexual assault, sexual battery, and sexual coercion. Such discrimination and harassment may be committed by or between students and employees.

The Department, through the Office of Civil Rights (“OCR”), enforces Title IX by evaluating, investigating, and resolving complaints alleging sex discrimination. OCR also conducts proactive investigations, called compliance reviews, to examine potential systemic violations based on sources of information other than complaints.

New Definitions. The new regulations establish new definitions for several important terms related to Title IX complaints.

Sexual Harassment. The new regulations establish a definition of the term “sexual harassment.” In accordance with the regulations, sexual harassment now means conduct on the basis of sex that satisfies one or more of the following:

(1) An employee of the school district conditioning the provision of an aid, benefit, or service of the school district on an individual’s participation in unwelcome sexual conduct;

(2) 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 district’s education program or activity; or

(3) “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).

Complainant. The new regulations define a “complainant” as “an individual who is alleged to be the victim of conduct that could constitute sexual harassment.” A complainant is not a third party who reports sexual harassment on behalf of a victim of conduct that could constitute sexual harassment.

Respondent. The new regulations also define a “respondent” as “an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.” For purposes of this article, we will refer to the “respondent” as the “accused.”

Consent. Interestingly, the new regulations do not attempt to define “consent” for purposes of sexual assault claims. Rather, the new regulations explicitly allow school districts to decline to adopt a definition for consent concerning sexual assault claims.

Education Program or Activity. The new regulations require school districts to respond to sexual harassment occurring in the school district’s “education program or activity,” which includes locations, events, or circumstances over which the school district exercises substantial control over both the complainant(s) and the accused. It does not include any sexual harassment occurring outside of the United States.

Designation of Title IX Coordinator. The new regulations require that each school district designate and authorize at least one employee to coordinate its efforts to comply with Title IX and refer to the designee as the “Title IX Coordinator.” In accordance with the new regulations, school districts must provide students, parents/legal guardians, employees, unions, and the school district’s vendors with notice of the Title IX Coordinator’s contact information. In addition, the Title IX Coordinator’s contact information must be included in handbooks and on the school district’s website.

Actual Knowledge of Sexual Harassment and Deliberate Indifference. Under Title IX, school districts are not liable for sexual harassment unless the school district has actual knowledge that sexual harassment is occurring and the school district fails to take prompt and effective action calculated to end the harassment, prevent its recurrence, and, as appropriate, remedy its effects.

The new regulations establish a definition of the term “actual knowledge.” In accordance with the regulations, actual knowledge now means notice of sexual harassment or allegations of sexual harassment to a school district’s Title IX Coordinator or any employee of an elementary and secondary school. Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to establish actual knowledge. A school district does not have actual knowledge when the only official with actual knowledge is the accused.

The new regulations also explain that a school district “with actual knowledge of sexual harassment in an education program or activity…must respond promptly in a manner that is not deliberately indifferent. A [school district] is deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light of the known circumstances.”

Supportive Measures for Complainants and the Accused. The new regulations establish a requirement that school districts provide supportive measures to the complainant(s) and the accused involved in a sexual harassment investigation. The new regulations also require school districts to treat the complainant(s) and the accused equitably with regard to such supportive measures. Under the new regulations, “Supportive Measures” are non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant(s) or the accused before or after the filing of a formal complaint or where no formal complaint has been filed.

Supportive measures are designed to restore or preserve equal access to the school district’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the school district’s educational environment, or deter sexual harassment. Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures.

In accordance with the new regulations, the Title IX Coordinator must promptly contact the complainant(s) to discuss the availability of supportive measures, consider the complainant’s wishes with respect to supportive measures, inform the complainant(s) of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant(s) the process for filing a formal complaint.

The regulations require the school district to maintain as confidential any supportive measures provided to the complainant(s) or the accused, to the extent that maintaining such confidentiality would not impair the ability of the school district to provide the supportive measures. The regulations also identify the Title IX Coordinator as the individual responsible for coordinating the effective implementation of supportive measures.

School District Response to a Sexual Harassment Complaint. The new regulations require school districts to follow a prescribed grievance process before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in the regulations against the accused.

Informal Resolution. A school district may not require informal resolution. Still, a school district may offer and facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication, provided that the school district takes the following steps:

(i) Provides to the parties a written notice disclosing: the allegations, the requirements of the informal resolution process, including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations, provided, however, that at any time before agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint, and any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared;

(ii) Obtains the parties’ voluntary, written consent to the informal resolution process; and

(iii) Does not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student.

Written Notice Requirements Upon Receipt of a Formal Complaint. Upon receipt of a formal complaint, a school district must provide the following written notice to the complainant(s) and the accused who are known. Such notice must include an explanation of the grievance process available for formal complaints and the informal resolution process. The written notice must also include:

(i) A description of the allegations of sexual harassment potentially constituting sexual harassment, including sufficient details known at the time and with sufficient time to prepare a response before any initial interview. Sufficient details include the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment, and the date and location of the alleged incident, if known.

(ii) A statement that the accused is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made after the grievance process.

(iii) A statement that the complainant(s) and the accused may have an advisor of their choice, who may be, but is not required to be, an attorney.

(iv) A statement that the complainant(s) and the accused may inspect and review evidence collected during the investigation.

(v) A reference to a provision in the school district’s code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the grievance process.

If, in the course of an investigation, the school district decides to investigate allegations about the complainant(s) or the accused that are not included in the original notice, the school district must provide notice of the additional allegations to the complainant(s) and the accused.

Interim Measures, including Emergency Removal and Administrative Leave. The new regulations explicitly allow for a school district to remove the accused from an education program or activity on an emergency basis, provided that the school district undertakes an individualized safety and risk analysis, determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifies removal, and provides the accused with notice and an opportunity to challenge the decision immediately following the removal. Similarly, the new regulations explicitly allow for a school district to place an employee, who is accused of sexual harassment, on administrative leave during the pendency of a grievance process.

Investigations of Formal Complaints. According to the new regulations, when investigating a formal complaint and throughout the grievance process, a school district must:

(i) Ensure that the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest on the school district and not on the parties provided that the school district cannot access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the school district obtains that party’s voluntary, written consent to do so.

(ii) Provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence.

(iii) Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence.

(iv) Provide the parties with the same opportunities to have others present during any grievance proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney, and not limit the choice or presence of advisor for either the complainant(s) or the accused in any meeting or grievance proceeding; however, the school 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.

(v) 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.

(vi) 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 raised in a formal complaint, including the evidence upon which the school district does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond to the evidence before the conclusion of the investigation. Prior to completion of the investigative report, the school 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 ten (10) days to submit a written response, which the investigator will consider before completing the investigative report. The school district 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.

(vii) Create an investigative report that fairly summarizes relevant evidence and, at least ten (10) days prior to a hearing (if a hearing is required or otherwise 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.

Dismissal. According to the new regulations, a school district must investigate the allegations in a formal complaint. However, if the conduct alleged in the formal complaint would not constitute sexual harassment, even if proved, if it did not occur in the school district’s education program or activity, or if it did not occur against a person in the United States, then the school district must dismiss the formal complaint with regard to that conduct for purposes of sexual harassment under Title IX. The new regulations explain that such a dismissal does not preclude action under another provision of the school district’s code of conduct.

The new regulations also permit the school district to dismiss a formal complaint or any allegations therein, if at any time during the investigation or hearing: a complainant(s) notifies the Title IX Coordinator in writing that the complainant(s) would like to withdraw the formal complaint or any allegations therein; if the accused is no longer enrolled or employed by the school district; or if other specific circumstances prevent the school district from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.

Upon a dismissal, the school district must promptly send written notice of the dismissal and reason(s) therefor simultaneously to the complainant(s) and the accused.

Grievance Process for Formal Complaints. The new regulations require a school district to offer the grievance process specified in the new regulations as part of its process for handling formal complaints of sexual harassment. The new regulations require that the grievance process include the following basic requirements:

(i) Treat the complainant(s) and the accused equitably by providing remedies to a complainant(s) where a determination of responsibility for sexual harassment has been made against the accused, and by following a proper grievance process before imposing any disciplinary sanctions or other actions that are not supportive measures, against the accused. Remedies must be designed to restore or preserve equal access to the school district’s education program or activity. Such remedies may include the same individualized services as “supportive measures”; however, remedies need not be non-disciplinary or non-punitive and need not avoid burdening the accused;

(ii) Require an objective evaluation of all relevant evidence – including both inculpatory and exculpatory evidence – and provide that credibility determinations may not be based on a person’s status as a complainant, accused, or witness;

(iii) Require that any individual designated as a Title IX Coordinator, investigator, decision-maker, or any person designated by a school district to facilitate an informal resolution process, not have a conflict of interest or bias for or against the complainant(s) or the accused generally or a complainant(s) or the accused; receive training on the definition of sexual harassment, the scope of the 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; and training on issues of relevance to create an investigative report that fairly summarizes relevant evidence. Furthermore, 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;

(iv) Include a presumption that the accused is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process;

(v) Include reasonably prompt time frames for concluding the grievance process, including reasonably prompt time frames for filing and resolving appeals and informal resolution processes, if the school district offers informal resolution processes, and a process that allows for the temporary delay of the grievance process or the limited extension of time frames for good cause with written notice to the complainant(s) and the accused of the delay or extension and the reasons for the action. Good cause may include considerations such as the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities;

(vi) Describe the range of possible disciplinary sanctions and remedies or list the possible disciplinary sanctions and remedies that the school district may implement following any determination of responsibility;

(vii) State whether the standard of evidence to be used to determine responsibility is the preponderance of the evidence standard or the clear and convincing evidence standard, apply the same standard of evidence for formal complaints against students as for formal complaints against employees, including faculty, and apply the same standard of evidence to all formal complaints of sexual harassment;

(viii) Include the procedures and permissible bases for the complainant(s) and the accused to appeal;

(ix) Describe the range of supportive measures available to the complainant(s) and the accused; and

(x) Not require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.

Hearings. For school districts, the grievance process may, but need not, provide for a hearing. With or without a hearing, after the school district has sent the investigative report to the parties and before reaching a determination regarding responsibility, the decision-maker(s) must afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party. In general, questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant. However, questions and evidence about the complainant’s prior sexual behavior may be relevant to prove that someone other than the accused committed the conduct alleged. Similarly, questions and evidence concerning specific incidents of the complainant’s prior sexual behavior with the accused may be relevant to prove consent. The decision-maker(s) must explain to the party proposing the questions any decision to exclude a question as not relevant.

Decision. Under the new regulations, the decision-maker cannot be the same person(s) as the Title IX Coordinator or the investigator(s). The decision-maker must issue a written determination regarding responsibility. To reach this determination, the recipient must apply the selected standard of evidence. The written determination must include the following:

(i) Identification of the allegations potentially constituting sexual harassment;

(ii) A description of 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;

(iii) Findings of fact supporting the determination;

(iv) Conclusions regarding the application of the school district’s code of conduct to the facts;

(v) A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the school district imposes on the accused, and whether the school district will provide remedies designed to restore or preserve equal access to the education program or activity to the complainant; and

(vi) The school district’s procedures and permissible bases for the complainant(s) and the accused to appeal.

The school district must provide the written determination to the parties simultaneously. The determination regarding responsibility becomes final either on the date the school district provides both parties with the written determination of an appeal, if an appeal is filed, or the date on which an appeal would no longer be considered timely.

Appeals. The school district must offer both parties an appeal from a determination regarding responsibility, and from a school district’s dismissal of a formal complaint or any allegations therein, on the following bases:

(i) Procedural irregularity that affected the outcome of the matter;

(ii) New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made that could affect the outcome of the matter; and

(iii) The Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against the complainant(s) or the accused generally or the complainant(s) or the accused that affected the outcome of the matter.

The school district may offer additional bases for an appeal, but must do so equally to the complainant(s) and the accused, if offered.

As to all appeals, the school district must:

(i) Notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties;

(ii) Ensure that the decision-maker(s) for the appeal is not the same person as the decision-maker(s) that reached the determination regarding responsibility or dismissal, the investigator(s), or the Title IX Coordinator;

(iii) Ensure that the decision-maker(s) for the appeal complies with the standards set forth in the policy and regulations;

(iv) Give both parties a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome;

(v) Issue a written decision describing the result of the appeal and the rationale for the result; and

(vi) Provide the written decision simultaneously to both parties.

Equal Treatment. The new regulations explain that a school district’s treatment of a complainant(s) or the accused in response to a formal complaint of sexual harassment may constitute discrimination on the basis of sex under Title IX.

Retaliation. The new Title IX regulations explicitly prohibit retaliation against any individual for the purpose of interfering with Title IX rights or because the individual has participated or refused to participate in any manner in a proceeding under the Title IX regulations. The regulations explain that charging an individual with a code of conduct violation for making a false statement in bad faith during a Title IX investigation or grievance procedure does not constitute retaliation. However, there must be more evidence beyond an unsubstantiated complaint to support a conclusion that an individual made a false statement. Additionally, the regulations require the school district to keep confidential the identity of the complainant(s), the accused, and any witnesses, except as may be permitted by pupil records laws and as necessary to process a Title IX sexual harassment complaint.

Training. The new regulations require school districts to provide training for all staff to assist them with the responsibility of identifying and reporting sexual harassment. In addition, Title IX Coordinator(s), investigator(s), and decision-makers(s) must receive more detailed training regarding sexual harassment investigations, grievance processing, and appeals.

Recordkeeping. According to the new regulations, school districts must maintain records of all materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process for a period of seven (7) years. A school district must make these materials publicly available on its website, or if the school district does not maintain a website, the school district must make these materials available upon request for inspection by members of the public.

Furthermore, the new regulations require school districts to create and maintain records of sexual harassment complaints, investigations, and actions, including any supportive measures, taken in response to a report or formal complaint of sexual harassment for a period of seven (7) years. The investigation records must include any determination regarding responsibility, any audio or audiovisual recording or transcript of a hearing, any disciplinary sanctions imposed on the accused, and any remedies and/or supportive measures provided to the complainant(s); any informal resolution process used and the result therefrom. In each instance, the school district must document the basis for its conclusion that its response was not deliberately indifferent, and document that it has taken measures designed to restore or preserve equal access to the recipient’s education program or activity. If a school district does not provide a complainant(s) with supportive measures, then the school district must document the reasons why such a response was not clearly unreasonable in light of the known circumstances. The documentation of certain explanations or measures does not limit the recipient in the future from providing additional explanations or detailing additional measures taken.

Conclusion. The new regulations create sweeping changes to school districts’ policies and procedures governing sexual harassment in the schools. Before the new regulations become effective in August 2020, school districts must review and revise sexual harassment policies and procedures, identify their Title IX Coordinator(s), investigator(s), and decision-makers(s) related to sexual harassment complaints, and provide training to such individuals. Failure to take such actions will likely impede the school district’s efforts to defend itself against sexual harassment complaints filed by students and employees in the future.

Note: On May 14, 2020, the American Civil Liberties Union (ACLU) filed a lawsuit against the U.S. Department of Education to block several provisions within these new regulations. We will monitor this litigation to determine whether any of the provisions are invalidated as a result of this litigation.