AASA Analysis of Title IX Regulation
Today, the U.S. Department of Education released
its long-awaited regulations on Title IX. Unless litigation against the U.S.
Department of Education by States is successful in stopping the regulations
from going into effect, these regulations must be implemented by districts
beginning in August. It’s also important
to note that districts can do more than these regulations require—this is the floor,
not the ceiling and State laws may supersede federal Title IX requirements in
the regs.
Background: AASA opposed
the proposed Title IX regulation in 2019 because we believed Title IX
compliance in districts was working relatively well, that the Title IX guidance
that was the basis for district policies and practices was generally
well-understood and executed and that these proposed regulations were
unnecessary, costly, and could actually undermine the health and safety of
students and their ability to report and seek redress for Title IX violations.
The final regulations have some important changes from the proposed
regulations. Specifically:
- Unlike the proposed regulations, the final
regulations allow students in elementary and secondary school can report a
Title IX claim to any employee at their school. A district must respond
whenever any employee has notice of sexual harassment or allegations of sexual
harassment, so there is no need to distinguish among employees who have
“authority to redress the harassment,” have the “duty to report” misconduct to
appropriate school officials, or employees who “a student could reasonably
believe” have that authority or duty.”
- Schools will be required to ignore all reports of in-school sexual harassment where the student has not yet been "effectively denied" equal access to a school program or activity.
- The Department has reconsidered the position
that a district’s Title IX obligations are triggered whenever employees “should
have known” due to the “pervasiveness” of sexual harassment. In the K12 context,
the final regulations charge a recipient with actual knowledge whenever any
employee has notice. Thus, if sexual harassment is “so pervasive” that some
employee “should have known” about it (e.g., sexualized graffiti scrawled
across lockers that meets the definition of sexual harassment), it is highly
likely that at least one employee did know about it and the school is charged
with actual knowledge. There is no reason to retain a separate “should have
known” standard to cover situations that are “so pervasive” in elementary and
secondary schools.
- Under the final regs, the district can now
investigate Title IX incidents that occur off-campus as long as “the school
exercises substantial control over both the respondent and the context in which
the sexual harassment occurs.” While it is possible for districts to address
sexual misconduct that occurs outside their education programs or activities,
they are not required to do so and in some circumstances would be prohibited from investigating these claims. There are also restrictions that would prohibit a district from investigating online sexual harassment.
- Schools will be required to start an investigation with the presumption that no sexual harassment occurs, so in essence, a student who reports sexual harassment is essentially lying.
- The district must notify all students, parents
or legal guardians of elementary and secondary school students and employees, the
name or title, office address, electronic mail address, and telephone number of
the employee or employees designated as the Title IX Coordinator
- The originally proposed “live hearing” process is
not mandatory, but still is an option that a district could choose to utilize
as part of it’s Title IX investigative process. With or without a hearing,
after the school has sent the investigative report to the parties and before
reaching a determination regarding responsibility, the district 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.
- A district can still use the preponderance standard, but may be forced to use 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.
This is a new and higher standard than what districts used previously.
- A district must offer both parties the right to
appeal the decision.
- A district may not require the parties to
participate in informal resolution and may not offer informal resolution unless
a formal complaint is filed. At any time prior to agreeing to a resolution, any
party has the right to withdraw from informal resolution and resume the
grievance process with respect to the formal complaint. Schools must not offer or facilitate an
informal resolution process to resolve allegations that an employee sexually
harassed a student.
On the whole, there are a few
positive changes that do make it easier for students to report and districts to
have flexibility in managing a Title IX complaint when compared to the proposed
regulations. However, we remain convinced that the Title IX regulations would
greatly alter some district policies and practices from the 2001 Title IX
guidance that district personnel have implemented for almost two decades. The
new regulations will require significant new training of districts, create new
processes and requirements for managing Title IX complaints, bind
the hands of education officials in addressing sexual assault that occurs
off-school grounds or online, and increase the likelihood that students will instead
pursue formal litigation against districts because their claims are not taken seriously or because they do not meet the standard required to have their complaint investigated by the district.