Posted on August 10, 2020
By: Lily Crespo Esq.
Quick takeaway: Districts should work with their school attorney to determine what they must do this summer to ensure that they are in compliance including: 1) review and revise Title IX policies and procedures; 2) review and revise codes of conduct and handbooks; 3) conduct training for Title IX Personnel and staff; and 4) provide via the District website information such as the Title IX Coordinator’s contact information, the District’s grievance process, and the District’s professional development materials.
Why this Friday August 14th is special… the United States Department of Education issued its Final Regulations focusing on Title IX protections for victims of sexual misconduct. The new regulations impose a number of requirements significantly altering the response of many school districts to complaints of sexual harassment. Though lawsuits have been filed to enjoin the regulations, they are scheduled to become effective on August 14. Accordingly, every school district (“District”) must begin taking steps to comply with these regulations now. This article will highlight the processes and procedures that every District must have in place by the beginning of the 2020-2021 school year.
What is Title IX? Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 (“Title IX”), provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .” Sexual harassment is a form of sex discrimination and, while the Department of Education has previously addressed the topic through guidance documents, these are the first regulations which will have the force of law when they become effective.
What is Sexual Harassment? The final rule defines sexual harassment as conduct on the basis of sex that satisfies one or more of the following:
- Quid pro quo: An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct
- 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 recipient’s education program or activity; or
- “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).
The District must adopt a policy stating that it does not discriminate on the basis of sex in the education program or activity that it operates, and that it is required by Title IX and the regulations not to discriminate in such a manner. This policy must be set forth on the District’s website and each handbook or catalog it publishes. The District must also notify Interested Persons (e.g., applicants for admission and employment, students, parents or legal guardians of elementary and secondary school students, employees, and all unions) of this policy. (We have these developed. Contact us for access.)
Each District must also adopt and publish grievance procedures that provide for the prompt and equitable resolution of student and employee complaints that do not amount to sexual harassment and a grievance process for formal complaints. The District must provide Interested Persons notice of the District’s 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 District will respond. (Again, we have templates developed. Contact us for access.)
What new positions are required to comply with the regulations?
To comply with the regulations, each District must designate employees and other individuals to serve in the following roles (Each role is different and comes with its own set of requirements and restrictions):
- Title IX Coordinator
- Decision-Maker, and
- Facilitator of Informal Resolution Process
- Appellate Decision Maker (required if there is an appeal of a responsibility determination).
What training is required?
In addition to designating Title IX Personnel, each District must train them. The required training includes training on:
- The definition of sexual harassment;
- The scope of the school’s 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.
The bad news: These requirements place a huge burden on school districts during a time when school leaders grapple every day with (only) the seminal issues to face this and our parent’s generation.
The good news: KLO is with you every step of the way. We have been working through and digesting the 2000 pages of regulations so we can support you in this strange and intense time. Contact us for access to our revised policies, procedures, notices and for general questions.
Contact Bea, Kevin, Megan, Beth, and Lily at 406-542-1300 to discuss these issues.