The New Title IX Rule and its Implications for Addressing Sex Discrimination in K-12 and Postsecondary Schools: Part 1

Public K-12 school districts, colleges, universities, and other educational institutions receiving public funds must operate their education programs and activities in a nondiscriminatory manner, free from discrimination based on sex, sexual orientation, and gender identity (Office for Civil Rights [OCR], 2021b). Since the new Title IX rule, known as the Final Rule, went into effect on August 14, 2020, there has been some confusion among educational institutions on what the changes mean for them, how it impacts allegations of sex discrimination, and what school districts can do to minimize the risk of sex discrimination and sexual harassment in their districts. The U.S. Department of Education Office for Civil Rights (OCR) provides information and guidance to educational institutions on how to comply with Title IX regulations. Prior to issuance of the new Title IX rule, OCR guidelines published in the form of Dear Colleague letters were confusing and provided a combination of legal requirements and “best practices” suggestions. 

The new Title IX rule is different in that it is legally binding and establishes what educational institutions must do and are prohibited from doing. The new Title IX rule outlines differences in how colleges and universities must investigate and adjudicate misconduct claims in comparison with K-12 school districts. Additionally, the new Title IX rule refines the definition of sexual harassment, redefines the role of the Title IX coordinator, and clarifies schools’ responsibilities for remedying and preventing discriminatory sexual harassment. As a result, the new regulations presented in the Final Rule are more demanding and expand standards established by the Supreme Court in the 1990s. 

How is the new Title IX rule different from previous regulations?

The 554-page document, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, released by OCR in the Federal Register on May 19, 2020, makes the following amendments to the previous Title IX regulations:

• Recognizes sexual harassment, including sexual assault, as unlawful sex discrimination. Prior to this date, sexual harassment was only recognized in the Dear Colleague letters, which were not legally binding.
• Specifies how schools must respond to allegations and an assertion that someone has engaged in sexual harassment consistent with Title IX’s prohibition against sex discrimination (OCR, 2021a, p. 2). In other words, sexual harassment incidents in education programs and activities are a form of sex discrimination and must be investigated.
• Requires schools to respond promptly whenever any employee in the school district has notice of sexual harassment. This allows and empowers bystanders to come forward when they hear of or observe sexual harassment.  
• States that schools have an obligation to respond promptly and supportively to persons alleged to be victims of sexual harassment. Schools are required to promptly investigate every formal complaint. Although there is not a specific time frame designated in the new Title IX rule, there is a requirement that a school’s grievance process for formal complaints include reasonably prompt time frames for concluding the process, including filing and resolving appeals. No part of the process is subject to an open-ended time frame (OCR, 2021a, p. 20).
• Emphasizes that schools have an obligation to resolve allegations of sexual harassment promptly and accurately under a predictable, fair Title IX grievance process that complies with the new Title IX rule. The fair Title IX grievance process provides due process protections to both the alleged victims and alleged perpetrators of sexual harassment. When responding to a sexual harassment complaint, supportive measures need to be offered to the complainant to restore or preserve equal access to the school’s education program or activity (OCR, 2021a, p. 18). In addition, the school must refrain from disciplining the respondent without following a Title IX grievance process or investigating formal complaints of sexual harassment. The new Title IX rule defines complainant, respondent, and formal complaint so that schools, students, and employees clearly understand how a school must respond to sexual harassment incidents in a way that supports the alleged victim and treats both parties fairly (U.S. Department of Education, n.d., pp. 2-3, 14).
• If the alleged perpetrator is found in violation of sexual harassment under Title IX, the school implements effective remedies for the victim.

The new Title IX rule also clarifies the remedies that the Federal Department of Education may impose on recipients of Title IX violations; outlines the intersection between Title IX, Constitutional protections, and other laws during the investigatory process; requires that each school designate a Title IX coordinator to address sex discrimination, including sexual harassment; requires dissemination of a school’s nondiscrimination policy and contact information for a Title IX coordinator; requires adoption of grievance procedures and a grievance process; provides information on how a school may claim a religious exemption whereby a school is exempt from Title IX to the extent that application of Title IX is inconsistent with a religious tenet of a religious organization that controls the school; and prohibits retaliation for exercise of rights under Title IX.

In 2016, Dr. Edward Dragan, owner and founder of our firm, wrote two articles (Title IX and Sexual Abuse in K-12 Schools and Title IX and Sexual Violence in Colleges and Universities) that outlined previous Title IX standards. The tenets of Dr. Dragan’s articles are still very accurate; however, there are some noticeable and important changes in the Final Rule that impact the duty of educational institutions that receive federal funds. Today’s new Title IX rule applies to education programs and activities in the United States that take place in any building or location that is part of the school’s program operations. This includes, but is not limited to, any remote learning or hybrid learning environments. In addition, any school-sponsored off-campus activities, such as field trips, overnight stays, or out-of-state activities, would fall under substantial control by the school. Finally, the Final Rule applies to off-campus buildings owned or controlled by a student organization that is officially recognized by a postsecondary school, such as a building owned by a university/college-recognized fraternity or sorority. In determining whether a school has “substantial control” over the respondent in an off-campus setting, the Office for Civil Rights recommends that a school use factors applied by the federal courts, such as “whether the school funded, promoted, or sponsored the event or circumstance where the alleged harassment occurred” (OCR, 2021a, p. 9). One example of a location that would not be covered by the new rules are study abroad programs.

Definition of harassment under the new Title IX rule

Older regulations and OCR guidance documents focused on proactively preventing harassment before it became “severe or pervasive.” Under the new Title IX rule, certain types of harassment are no longer subject to severity-and-pervasiveness evaluation. Under the Final Rule’s three-part sexual harassment definition, when a school employee places an educational benefit on participation in unwanted sexual conduct (i.e., a quid pro quo), such action constitutes a direct violation, regardless of severity or pervasiveness. This would include a school employee offering something to a student in exchange for a sexual favor or other sexual conduct (for example, a male high school teacher who offers a female high school senior student a letter of recommendation to a prestigious university in exchange for sexual favors). Similarly, any form of sexual assault (as defined in the Clery Act) and dating violence, domestic violence, or stalking (as defined in the Violence Against Women Act [VAWA]) under the new Title IX rule is considered so serious that there is no “pervasiveness” required. Sexual assault includes rape, fondling, incest, and statutory rape. Dating violence is defined as being committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. Domestic violence is defined as a felony or misdemeanor crime of violence committed by a current or former spouse or intimate partner of the victim; by a person with whom the victim shares a child in common; by a person who is cohabitating with, or has cohabitated with, the victim as a spouse or intimate partner; by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred; or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred. Stalking is engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for the person’s safety or the safety of others or suffer substantial emotional distress. An example of sexual harassment in this category would be a male university residence director who, over a period of time, stalks a college student around campus from class to class, attends her swimming practices, and goes to her meets. One night after a meet, he rapes her in the girls’ locker room after everyone else left the pool area.

Lastly, the definition includes unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity. It should be noted that this is significantly more narrow in scope than the previous definition (“sufficiently severe, persistent, or pervasive”) established in the 2001 regulations (OCR, 2001, pp. v-vi). The definition of sexual harassment in the new Title IX rule was developed from a United States Supreme Court decision in Davis v. Monroe County Board of Education (1999). In this case, the petitioner filed suit against the respondents, the Monroe County Board of Education and school officials, seeking damages for the sexual harassment of her daughter LaShonda by G.F., a fifth-grade classmate at a public elementary school. According to the complaint, G.F. attempted on many occasions to touch LaShonda’s private areas and made vulgar statements. Several complaints were made over a five-month period to the school staff, but no action was taken until G.F. was charged with, and pleaded guilty to, sexual battery for his misconduct. The petitioner alleged that the respondents’ deliberate indifference to G.F.’s persistent sexual advances toward LaShonda created an intimidating, hostile, offensive, and abusive school environment that violated Title IX, which prohibits a student from “being excluded from participation in, being denied the benefits of, or being subjected to discrimination under any education program or activity receiving Federal financial assistance.” As part of the complaint, it was alleged that LaShonda suffered during the months of harassment, her grades dropped, and her father discovered a suicide note. In this case, a determination was made that a school may be required to pay financial compensation in a lawsuit to the complainant for sexual harassment by one student toward another student. 

Unfortunately, sexual violence cases in K-12 schools are on the rise. In the latest U.S. Department of Education Office for Civil Rights Data Collection of Sexual Violence in K-12 Schools, there were 14,938 reported incidents of sexual violence in K-12 public schools in 2017-2018, a 55% increase from 2015-2016. Moreover, in a 2014 study conducted by the University of Illinois at Urbana–Champaign, 21.6% of middle school students who experienced sexual harassment indicated being physically touched when they did not want to be.  It should be noted that the date of an incident similar to above would determine which version of the Title IX rule would be implemented. For those incidents that occur after August 14, 2020, the new Title IX rule would be applied, and any sexually harassing conduct that meets the above definition and that took place after that date would need to be investigated and remediated under the new regulations. Cases between September 22, 2017, and August 14, 2020, would be examined using the old OCR guidance, Dear Colleague Letter on Sexual Campus Misconduct and Q&A on Campus Sexual Misconduct which were released to all K-12 public school districts and colleges and universities on September 22, 2017, and the 2001 Revised Sexual Harassment Guidance. All other documents during this time period were rescinded.  Any cases before September 22, 2017 would use the 2001 Revised Sexual Harassment Guidance. The new Title IX rule and the refined definition of harassment are more focused on requiring educational institutions to take specific action in response to serious instances of sexual harassment, and there is less focus on less-severe conduct such as occasional name-calling or similar conduct that would not meet the severity-and-pervasiveness requirements.  

Notice to schools, colleges, universities, and other recipients of federal funds

Another major change under the new Title IX rule is in reference to notice or actual knowledge (as referred to in the Final Rule) of sexual harassment or alleged sexual harassment from complainants. In cases where the complainant is a third party, the third party is referred to as a reporter. In the Final Rule, actual knowledge is defined as the institution having notice of sexual harassment or allegations of sexual harassment to either the school’s Title IX coordinator, OR any official of the school who has the authority to institute corrective measures on behalf of the school, OR to any employee of an elementary or secondary school. In other words, at the elementary and secondary level, the school must respond when any employee has notice. This is why it is critical to train all employees to recognize notice. In the postsecondary setting, the institution must respond when the Title IX coordinator or another official who has authority to institute corrective measures on the school’s behalf receives notice. It should be noted that a postsecondary school may require additional employees to report allegations of sexual harassment to the school as long as they follow the notification process to students and staff as described above. This makes ongoing training required for the aforementioned staff to assure that they know how to respond when a complaint is received. The new Title IX rule does not limit the manner in which the school receives notice, so it can be through direct observation, written report, oral report, a newspaper article, blog post, or anonymous or other means.

Under the new Title IX rule and its definition, not all potential sexual harassment cases may fall under Title IX regulations. In lieu of Title IX, however, nothing prevents schools from applying state laws, state department of education regulations, and local school board or university policies and regulations to discipline and discourage students from engaging in related or less severe conduct that is not covered under the new rules. For this reason, training is critical to ensure that administrators and Title IX coordinators in educational institutions understand the laws and policies that exist in their organization and state. It is absolutely critical that ALL employees be trained in recognizing and reporting sexual harassment, sex discrimination, grooming, and abuse cases. Regular and ongoing training should be differentiated based on that person’s role in the organization with respect to Title IX. Moreover, it is important that if a school receives a potential sexual harassment complaint, the district or university should immediately contact their institution’s legal counsel to get further guidance. Engaging legal counsel at the beginning of the complaint process is a proactive measure to assure that regulatory procedures and processes are followed correctly, that supportive measures are put in place for the complainant early in the process, and that all parties involved have due process in accordance with the regulations. 

The redefined role of the Title IX coordinator in the new Title IX rule

Under the new Title IX rule, the school’s obligation to communicate to its community about how to report a sexual harassment or sex discrimination claim is expanded by clarifying the role of the Title IX coordinator. As previous, the Final Rule states that each educational institution must designate and authorize at least one Title IX coordinator responsible for Title IX compliance. The Title IX coordinator(s) are objective with the charge of evaluating all relevant evidence without preconceived notions of the facts and free from conflicts of interest or bias for complainants or respondents. To facilitate effective communication, schools are required to notify any applicants for admission and employment, students, parents or legal guardians of elementary and secondary students, employees, and all unions with the name or title, office address, e-mail address, and telephone number of the designated Title IX coordinator(s) and prominently display that contact information on their websites. This information should be posted on the school and district websites, in employee and student handbooks, in school board and university policies, in the opening of school newsletters to parents and staff, on job applications, and other communication venues. In some educational institutions or school districts, there are deputy Title IX coordinators who fall under the Title IX coordinator and are assigned to areas in which Title IX may be most impacted, such as athletics, human resources, and special education. In other words, there can be separate Title IX coordinators for staff and students. The new Title IX rule does not specify how many coordinators are required for each university or school district.

The Title IX coordinator is a critical part of the entire Title IX process and whose main role is to lead and coordinate the entire district’s Title IX compliance efforts. The Title IX coordinator must be trained in laws and regulations governing Title IX and know the Title IX policy and grievance process. In addition, a coordinator should arrange or provide sex-discrimination and sexual-harassment training for all employees and students. This includes any new employees who enter during the school year and not just at the beginning of the school year. This position should report to the superintendent of schools in K-12 school districts and an administrator at the level of dean of students or higher at the university level. In addition, the Title IX coordinator must be autonomous and independent and cannot be influenced by any one person or board. Under the new Title IX rule, the Title IX coordinator cannot be the decision maker or appeals officer for a complaint. However, the coordinator can serve as the investigator or informal resolution facilitator, but not both. In some school districts or colleges, the Title IX coordinator is also the civil rights coordinator, which is permissible under the Final Rule; however, there needs to be a clear distinction between the two roles. Therefore, in school districts, if there is not a separate position dedicated to this role, the role of Title IX coordinator or deputy Title IX coordinator could be assigned to the athletic director, director of special education or student services, assistant superintendent, or human resources administrator. The superintendent or other persons with clear conflict should never serve in the role of Title IX coordinator because they would be in the role of appeals officer for any decisions made by the decision maker. At the university or college level, it is recommended that there be an independent position focused solely on Title IX regulations and their implementation, and in contrast to K-12 school districts, colleges and universities are required to hold live disciplinary hearings.

Summary

This article provides a general overview of the Title IX Amendments of 2020 (the new Title IX rule or Final Rule), how they differ from previous amendments, a definition of sexual harassment, the role of the Title IX coordinator, and who should report allegations of sexual harassment to the school. In the next article in this series, we will review the process once a complaint is filed, how a Title IX investigation is implemented, and how a school must respond to allegations of sexual harassment; what supportive measures are and how to implement them appropriately; and the impact of the new regulations on athletics.  

When a lawsuit is filed against an educational institution for harm or rights violations of students who were subject to sexual harassment and/or violence, one of the school’s best defenses is to demonstrate that it met the professional standard of care through well-documented policies, training, grievance procedures, investigation, findings, and remediation efforts, and that it was not deliberately indifferent to a known instance of discriminatory harassment. Educational institutions, through their administrators and/or other employees, should keep in mind that the new Title IX rule is a starting point, and nothing prevents the school from developing further policies, rules, and requirements that allow it to meet its duty to respond and resolve instances of sexual harassment and violence on its campus.

References

Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). https://tile.loc.gov/storage-services/service/ll/usrep/usrep526/usrep526629/usrep526629.pdf

Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 34 C.F.R. 106 (2020). https://www.govinfo.gov/content/pkg/FR-2020-05-19/pdf/2020-10512.pdf

Office for Civil Rights. (2001, January). Revised sexual harassment guidance: Harassment of students by school employees, other students, or third parties: Title IX. U.S. Department of Education. https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf

Office for Civil Rights. (2021a, July). Questions and answers on the Title IX regulations on sexual harassment. U.S. Department of Education. https://www2.ed.gov/about/offices/list/ocr/docs/202107-qa-titleix.pdf

Office for Civil Rights. (2021b, August). Title IX and sex discrimination. U.S. Department of Education. https://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html

U.S. Department of Education. (n.d.). Summary of major provisions of the Department of Education’s Title IX Final Rule. https://www2.ed.gov/about/offices/list/ocr/docs/titleix-summary.pdf