AASA Analysis of Title IX Regulation

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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. 

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