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2020 Title IX Regulations: Information and Resources for Schools

(Last Updated August 14, 2020)

 

On May 19, 2020, the U.S. Department of Education published its new Title IX regulations covering sexual harassment, sex discrimination and sexual assault in education programs and activities. The new regulations take effect on August 14, 2020 — in time for the start of the 2020-21 school term.

Every school district will need to review and modify various policies and procedures in connection with the implementation of the new Title IX regulations. There will also be a significant training and staff development component to address in most districts. The WASB teamed up with the law firm Boardman & Clark to hold a complimentary webinar on July 8 about the new Title IX regulations:

Additional background information is below.

NOW AVAILABLE: The WASB and Boardman & Clark are also creating Title IX training modules to help school districts meet the law’s staff training  requirements. Visit the Title IX Training web page for details on the modules and how to purchase the training.

The WASB will periodically update this web page with additional information and resources related to the new Title IX regulations. NOTICE: This resource page presents information and commentary to facilitate a general understanding of the topics that are addressed, but it does not present an exhaustive or complete treatment of any legal or policy issues. The information that is provided does not constitute legal advice and should not be relied upon or used as legal advice.

Introductory Q&A on the New Title IX Regulations

(last modified on 6/9/2020)

1.  What is the primary focus of the new Title IX regulations in the K-12 context?

The primary focus of the regulations concerns the overall institutional response by school districts to alleged or confirmed incidents of sexual harassment (including sexual assault and other forms of sexual violence) that may occur in the district’s education programs and activities within the United States. For purposes of a district’s Title IX obligations relating to sexual harassment, an “education program or activity” includes locations, events, or circumstances over which the school district exercised substantial control over both the respondent (i.e., the alleged perpetrator of the conduct) and the context in which the sexual harassment occurred.  Some of the final regulations, such as requirements for school districts to give certain notices, to identify a Title IX Coordinator, and to prohibit retaliation, relate to all forms of prohibited sex discrimination (i.e., not exclusively to sexual harassment).

Title IX applies to public school districts in this context because school districts are recipients of federal funds and because sexual harassment within education programs and activities is recognized as one form of unlawful discrimination that is based on sex. The new regulations apply to incidents and allegations of sexual harassment regardless of whether a student or an employee is the complainant (i.e., an alleged victim) or the respondent (i.e., the individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment).  Refer to Question 5, below, for information on aspects of Title IX that are not addressed by the new regulations.

2.  When do the new Title IX regulations take effect?

The regulations take effect on August 14, 2020.

3.  What are some examples of the mandates contained in the regulations and the adjustments that school districts will have to make to their local policies and procedures?

Some examples of the changes that need to be addressed by school districts include the following:

    • A school district’s obligations to respond to incidents or allegations of sexual harassment under the Title IX regulations are triggered any time the district has actual knowledge of the relevant circumstances. Under the regulations, “actual knowledge” means notice of sexual harassment or allegations of sexual harassment to the district’s Title IX Coordinator, to any school district official who has authority to institute corrective measures on behalf of the district, or to any employee of an elementary and secondary school. In all cases, a school district’s general obligation is to respond promptly and in a manner that is not clearly unreasonable in light of the known circumstances (i.e., in a manner that is “not deliberately indifferent”).
    • The regulations create a definition of “sexual harassment” that is specific to Title IX. (See Question 4, below.)
    • School districts are required to create and implement a formal Title IX grievance process to address formal complaints of sexual harassment. The grievance process needs to incorporate numerous procedures and standards that are specified in the regulations. The regulatory requirements for the grievance process (which, as defined primarily in section 106.45, are a topic unto themselves) differ substantially from most districts’ existing discrimination complaint procedures and from most districts’ pre-disciplinary procedures (whether for students or for employees).
    • School districts must develop and implement response protocols that differentiate between formal complaints of sexual harassment and reports of possible sexual harassment of which the district has actual knowledge. Only formal complaints trigger the obligation to use the formal Title IX investigation/grievance process. However, prior to and after the filing of a formal complaint as well as in the absence of a formal complaint, school districts still must respond to reports of possible sexual harassment by, for example, offering and providing “supportive measures” and taking other steps. “Supportive measures” are defined in section 106.30 of the amended regulations. Generally, “supportive measures” are non-disciplinary, non-punitive individualized services offered as appropriate and without fee or charge to the complainant or the respondent that are are designed to restore or preserve equal access to the school district’s education program or activity without unreasonably burdening the other party.
    • In connection with formal complaints, the regulations significantly restrict the ability of school districts to impose disciplinary sanctions or take other adverse actions against alleged perpetrators of sexual harassment until after an investigation occurs and a determination of responsibility is made at the conclusion of the grievance process.  However, the regulations do make allowances for the emergency removal of a student from a program or activity in limited circumstances and also generally allow a school district to place an employee on a non-disciplinary administrative leave.
    • The regulations define several independent roles within the formal Title IX grievance process that cannot be performed by the same person. These roles include the investigator, the decision-maker, and the person who responds to an appeal. Some districts may also define a role for individuals who are trained to facilitate an informal resolution process, if the parties voluntarily consent to participating in such a process in appropriate cases.
    • The regulations impose various training mandates.
    • The regulations impose new notice requirements.
    • The regulations impose new recordkeeping obligations.

4.  How do the new Title IX regulations define sexual harassment?

The amended federal regulations establish a new definition of sexual harassment that is specific to Title IX. Under the regulations, sexual harassment means conduct on the basis of sex that satisfies one or more of the following:

    1.   A school district employee conditioning the provision of an aid, benefit, or service of the 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 district’s education program or activity; OR
    3.  “Sexual assault,” “dating violence,” “domestic violence,” or “stalking;” as each of those terms is defined by reference to specific federal statutes.

It is significant, for example, that under the second prong of this new definition, conduct must be “… severe, pervasive, and objectively offensive … ” in order to constitute sexual harassment under Title IX.

The definition of sexual harassment under the new regulations is different from (and generally narrower than) the definition of the term that applies under Title VII (which is another federal law that prohibits sexual harassment in employment). Similarly, through student codes of conduct, employee handbooks, and other local policies, school districts generally prohibit and assert an interest in addressing a substantially broader range of undesirable conduct than just the conduct that falls within the comparatively narrow Title IX definition of sexual harassment.  As a result, a conclusion that sexual harassment has not occurred under Title IX will not fully answer the question of whether an employee, student, or other respondent has engaged in inappropriate conduct. It will be a significant challenge for school officials to harmonize not only the different substantive standards that might be applied to a given allegation of misconduct, but also the different procedural rights and requirements that may need to be satisfied in each specific case.

5.  What aspects of Title IX were not addressed in the new Title IX regulations?

When the claims in question do not involve allegations of sexual harassment, the new Title IX regulations:

    • Do not directly modify the application of Title IX to claims of a lack of equal opportunities within a school district’s programs and activities. For example, the new regulations do not substantively modify school districts’ obligations relating to claims that a school district is offering inferior participation opportunities, funding, or facilities in its athletic programs based on the sex of the participants.
    • Do not directly address the application of Title IX to claims of discrimination based on a person’s transgender status or gender non-conformity. Specifically, the new regulations do not materially add to the existing legal landscape for addressing issues such as a transgender student’s participation in sex-segregated sports or a transgender student’s access to sex-segregated restrooms or locker rooms. At the same time, a student or an employee who is transgender could certainly be a “complainant” under the new regulations based on a concern that the individual is being sexually harassed in a school-related setting.
The New Regulations and U.S. Department of Education Guidance

(last modified on 8/14/2020)

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What general steps need to be taken to implement the Title IX regulations?

(last modified on 6/9/2020)

The following is an outline of the general steps that school leaders will need to take to initially implement the new Title IX regulations on a timely basis.  Also listed are some resources that WASB intends to provide to assist school districts with the process.

  • May/June:
    —  Become familiar with the basics of the regulatory changes and the scope of the local discretionary decisions that will factor into developing the district’s policies and procedures.
    —  Verify that the district has formally designated a Title IX Coordinator and confirm who the district intends to serve in that capacity in light of the new regulations.
    —   Assign responsibility for guiding a review and revision of local policies and procedures.  Most directly, this will include the district’s nondiscrimination policies and complaint procedures.  However, other policy areas, such as student disciplinary procedures and staff-student relationship policies will also be relevant.
  • June/July:
    —  Prepare policy changes and required notices
    —  Identify an approach to the new training mandates
  • July/August:
    —  Adopt revised policies and procedures, implement initial training, and issue required notices.
School District Policies and Procedures

(last modified on 7/8/2020)

Every school district will need to review and modify various policies and procedures in connection with the implementation of the new Title IX regulations. Most directly, this will include the district’s nondiscrimination policies and complaint procedures. However, other policy areas, such as student disciplinary procedures and staff-student relationship policies may also be relevant.

WASB’s legal and policy services staff has collaborated with Boardman & Clark, LLP to create this document, which served as the handout for a webinar held on July 8:

  • The document assumes some general familiarity with the requirements of the amended Title IX regulations, including especially:
    • Section 106.8: Addressing the designation of a Title IX Coordinator, the adoption of grievance procedures, and notice/dissemination of policies
    • Section 106.30: Important new definitions added by the Final Rule
    • Section 106.44: Addressing the requirements for school districts to respond to each report or complaint of sexual harassment of which the district has actual knowledge
    • Section 106.45: Requiring school districts to establish and administer a grievance process for formal complaints of sexual harassment; also addressing training and recordkeeping requirements
    • Section 106.71: Non-retaliation and confidentiality requirements.
Notice Requirements under Title IX

(last modified on 6/9/2020)

The amended Title IX regulations include the following general notice requirements and mandates for policy dissemination (see section 106.8 of the amended regulations) 

School districts must notify applicants for admission and employment, students, parents or legal guardians of elementary and secondary school students, employees, and all unions or professional organizations holding collective bargaining or professional agreements with the school district of all of the following:

  • The name or title, office address, electronic mail address, and telephone number of the employee or employees designated as the Title IX Coordinator.
  • That the school district does not discriminate on the basis of sex in the education program or activity that it operates, and that the school district is required by Title IX and Part 106 of Title 34 of the Code of Federal Regulations not to discriminate in such a manner. Such notification must state that the requirement not to discriminate in the education program or activity extends to admission and employment, and that inquiries about the application of Title IX and Part 106 to the school district may be referred to the school district’s Title IX Coordinator, to the Assistant Secretary at the U.S. Department of Education, or both.
  • The school district’s Title IX grievance procedures and grievance process, including how to report or file a complaint of sex discrimination, how to report or file a formal complaint of sexual harassment, and how the school district will respond.

In addition, each school district must prominently display the contact information for the Title IX Coordinator (as identified above) and the district’s Title IX nondiscrimination policy on its website, if any, and in each handbook or catalog that it makes available to the persons who are entitled to receive the notifications listed above.

Many school districts will elect to coordinate the above-identified notice requirements with other nondiscrimination notice requirements established under state or federal law.  For more information about such notice obligations, refer to the WASB’s updated list of “State and Federal Annual Notice Requirements.”

Training Requirements

(last modified on 6/9/2020)

The amended Title IX regulations include the following training requirements (see section 106.45(b)(1)(iii) and section 106.45(b)(10))

School districts must ensure that Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, receive training on:

  • the definition of sexual harassment under the Title IX regulations,
  • the scope of the school district’s education program or activity,
  • how to conduct an investigation and grievance process including hearings (if applicable), appeals, and informal resolution processes (if applicable)
  • how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias.

School districts must also ensure that decision-makers receive training on any technology to be used at a live hearing (if applicable) 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, as set forth in the regulations.

School districts also must ensure that investigators 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.

School districts are required to retain records, for a period of seven years, of all materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process.  In addition, school districts must make these training materials publicly available on the district’s website, or if the district does not maintain a website the district must make these materials available upon request for inspection by members of the public.

Beyond basic compliance:

  • Under the new regulations (see section 106.30), school districts are deemed to have “actual knowledge” of sexual harassment (and can begin to take on Title IX liability) if any employee of the district has notice of an incident of sexual harassment or an allegation of sexual harassment.  For this reason, some districts may choose to require all employees (and perhaps some non-employees, such as volunteer coaches) to participate in a general, awareness-level training module regarding sexual harassment and the district’s Title IX obligations.
  • Some school districts may also decide to supplement their initial Title IX training with more extensive training and awareness efforts as time and resources allow.  For example, after completing initial training to achieve basic compliance in the short term, some districts may decide that, as time and resources allow, it would be beneficial to provide more in-depth training to the individuals who perform the roles defined in the Title IX grievance process together in a common setting.

To help districts meet the training requirements, the WASB and Boardman & Clark have partnered to create mandatory and enhanced training modules. Visit the Training Modules page for more information and to subscribe.

New Recordkeeping Requirements

(last modified on 8/9/2020 with minor clarifications)

The amended Title IX regulations include the following recordkeeping requirements (see section 106.45(b)(10))

School districts must maintain the following records for a period of seven years:

  1. In connection with a school district response to any report or formal complaint of sexual harassment, the district must create and maintain a record of any actions, including any supportive measures, that the district takes in response to the report or complaint.  In each instance:
    1. The 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 school district’s education program or activity.
    2. If a district does not provide a complainant with supportive measures, then the district must document the reasons why such a response was not clearly unreasonable in light of the known circumstances.
    3. The documentation of certain bases or measures does not limit the district in the future from providing additional explanations or detailing additional measures taken.
  2. In connection with each formal complaint of sexual harassment that is filed, a school district must maintain a record of:
    1. Each sexual harassment investigation including:
      1. any determination regarding responsibility;
      2. any disciplinary sanctions imposed on the respondent; 
      3. any remedies provided to the complainant designed to restore or preserve equal access to the district’s education program or activity;
      4. any audio or audiovisual recording or transcript from any hearing held as part of the grievance process. (Note: School districts generally will not hold live hearings under their grievance processes and, as a result, will not generate such recordings/transcripts.)  
    2. Any appeal and the result of an appeal; and
    3. Any informal resolution and the result therefrom.
  3. All materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process. A school district must make these training 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.

Particularly to the extent that the records identified above also constitute “behavioral records” of an individual student under section 118.125 of the state statutes, the respective state and federal records retention obligations of the school district may conflict and need to be reconciled.  One way to reconcile the obligations would be to determine that the federal obligations simply trump the state law, and there is some support for that position in the Title IX regulations.  Another possibility is that districts may be required to remove personally-identifiable student information from the Title IX records at the appropriate time and, thereafter, retain the Title IX records in a manner that is not personally identifiable.  Currently, that is one of the many open questions about how school districts should implement the new regulations.

Confidentiality and Non-retaliation Requirements

(last modified on 7/8/2020)

The amended Title IX regulations include the following confidentiality requirements (see sections 106.71(a), 106.30(a), and 106.45(b)(5)(i))

  1. Under section 106.71(a), a school district must keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except:
    1. as may be permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99; or
    2. as required by law; or
    3. to carry out the purposes of the Title IX regulations, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.
  2. The school district must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the school district to provide the supportive measures.  (This provision appears in the definition of “supportive measures” within section 106.30(a).)
  3. A 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 for a Title IX grievance process.  If a party is not not an “eligible student,” as defined under FERPA (e.g., the party is a minor), then the school district must obtain the voluntary, written consent of a parent or authorized guardian. (section 106.45(b)(5)(i)).

 

(added on 7/8/2020)

The amended Title IX regulations include the following non-retaliation requirements (see section 106.71)

  1. No school district or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by title IX or this part, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this part. Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by title IX or this part, constitutes retaliation.
    1. The exercise of rights protected under the First Amendment does not constitute prohibited retaliation.
    2. Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance proceeding under this part does not constitute retaliation prohibited under paragraph (a) of this section, provided, however, that a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith.
  2. Complaints alleging retaliation may be filed according to the grievance procedures for sex discrimination that school districts are required to adopt under §106.8(c).
Additional Resources

(last modified on 7/10/2020)

The WASB teamed up with the law firm of Boardman & Clark to hold a complimentary webinar about the new Title IX regulations. The July 8 presentation handout is here and a recording of the webinar is available here.

See also the resources and guidance provided by the U.S. Department of Education, as listed and linked on this web page under the heading/section titled “The New Regulations and U.S. Department of Education Guidance.”

 

Pending Legal Challenge to the Regulations

(last modified on 8/14/2020)

Multiple states’ attorneys general, including the Wisconsin Attorney General, have filed a lawsuit that seeks to block the implementation of the new Title IX regulations on the basis that various aspects of the new regulations are “arbitrary” and contrary to applicable law.

The National School Boards Association (NSBA) reported on August 11th that the judge in the case referenced above DENIED the request for a preliminary injunction that would have at least temporarily delayed the effective date of the regulations.  As a result, the rule took effect on August 14, 2020, as originally scheduled by the U.S. Department of Education.

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