“Actual Knowledge” under the NEW Title IX

Posted on September 08, 2020

By: Lily Crespo Esq.

This is happening: With hopes swirling and dashed to the ground of early injunctions and bans on implementation, the news is slowly sinking in that this is the new normal. Allegations of sexual harassment in Montana school districts will have to be handled under the new Title IX regulatory scheme.

What the new regulations require: Generally, the new regulations require a school or district to respond “promptly” and not in a “deliberately indifferent” manner (i.e., not “clearly unreasonable in light of the known circumstances”) when it has “actual knowledge” of “sexual harassment” in its “education program or activity” against a person in the United States.

What is “actual knowledge”? A school or district has actual knowledge when notice or allegations of sexual harassment are reported to any school employee; or any employee personally observes such behavior. A school or district employee includes Title IX Coordinator, administrators, teachers, teacher’s aides, bus drivers, cafeteria workers, counselors, school resource officers, maintenance staff workers, or any other employee.

Actual knowledge is met when any employee:

• Witnesses the conduct.
• Hears about the conduct from the alleged victim or anyone else (e.g., parent, friend, peer, anonymous reporter).
• Receives a written report of the conduct from the alleged victim or anyone else.

The new regulations are arguably much clearer about the scope of responsibility placed on K-12 recipients, because the “actual knowledge” standard explicitly includes all employees in elementary and secondary schools. Therefore, for K-12 recipients, all employees are viewed by ED as having

authority to “institute corrective measures” and to forward all reports to the Title IX Coordinator.

What does this mean for school districts? It means that along with everything else on your plate, you need to know that since the implementation date (August 14) any allegations of sexual harassment need to be handled in a completely different way. Additionally, a LOT more people need to be trained to deal with the new regulations. The regulations themselves contain specific training requirements for school staff.

Contact us to find out about our upcoming trainings and Title IX compliance kits. Bea, Kevin, Megan, Beth, and Lily can be reached at 406-542-1300.