New Title IX sexual harassment regulations – what to watch for
The U.S. Department of Education has issued new federal regulations to implement Title IX of the Education Amendments of 1972, which prohibits a recipient of federal financial assistance, including an elementary or secondary school, from discriminating against any individual on the basis of sex in any education program or activity.

The new regulations, which will become effective on Aug. 14, 2020, cover a wide range of sexual harassment related topics, including how recipients must handle claims of sexual harassment, sexual assault, dating violence, domestic violence and stalking. Thus, a more in-depth analysis will be needed in due course to determine when and to what extent these new regulations supplant, supplement or supersede California’s robust sexual harassment laws and regulations. A few key provisions of the new federal regulations are summarized below.

Sexual harassment for Title IX purposes: Under the new rules, sexual harassment is defined for Title IX purposes as including any instance where an employee conditions a school’s aids, benefits or services on the student’s participation in sexual conduct — quid pro quo harassment, any unwelcome conduct that a reasonable person would find so severe, pervasive and objectively offensive that it could deny the person equal educational access — hostile environment, and any instance of sexual assault, dating or domestic violence, or stalking.

Response trigger: A school is required to respond when it has actual knowledge of sexual harassment. According to the summary of major provisions released by the Education Department, notice to the Title IX Coordinator or another official with authority to institute corrective measures on behalf of the school or to any employee of the school constitutes actual knowledge and will trigger the school’s response obligations.

Reporting access: To enable any person to report sex discrimination, including sexual harassment, in person or by mail, email, telephone or any other means, a school is mandated to notify not just students and employees of the Title IX Coordinator’s contact information and how sexual harassment may be reported to them, but applicants for admission and employment, parents and all unions as well. The name or title, office address, email address and telephone number of the Title IX Coordinator must be included in the notification.

Mandatory response obligations: When a school has notice of sexual harassment, the school must respond promptly, in a manner that is “not deliberately indifferent,” meaning that the school’s response must not be clearly unreasonable in light of the known circumstances. To meet the deliberate indifference standard, a school must offer supportive measures to an alleged victim of sexual harassment. When a report is received, the Title IX Coordinator must promptly explain the complaint process to the complainant and inform them that supportive measures are available to them, whether or not a formal complaint is filed.

Further, the school must follow a Title IX grievance process that provides for an investigation before any disciplinary sanction can be imposed on a respondent or alleged perpetrator. Importantly, the rules mandate that if the allegations in the formal complaint do not meet the definition of sexual harassment, the allegations must be dismissed for Title IX purposes, even as the allegations may still be addressed in an appropriate manner under the school’s code of conduct.

Grievance process: The rules prescribe a consistent, transparent grievance process for resolving sexual harassment complaints. The grievance process must treat parties equitably, by providing remedies to a complainant when a respondent is determined to be responsible for sexual harassment and by not imposing disciplinary sanctions against a respondent without following the prescribed grievance process. Other required components of the grievance process address training for Title IX personnel, posting of the training materials used in such trainings on the school’s website, the standard of proof adopted for sexual harassment complaints, and a description of available appeal procedure and the range of supportive measures to be offered to complainants and respondents.

Finally, because the new rules are not completely consistent with state law and regulations, districts must review their sexual harassment policies and complaint procedures in light of the new rules. Where necessary, a district should consult legal counsel and appropriate policy revisions and practice adjustments should be made promptly. Policies likely to be affected by these rules include those on Student Sexual Harassment and Nondiscrimination/Harassment – BP/AR 5145.7 and BP/AR 5145.3 and Uniform Complaint Procedures – BP/AR 1312.3.

Please note that the information provided here by CSBA is for informational purposes and is not legal advice. Please contact your legal counsel for questions related to this information.