On May 6, 2020, the U.S. Department of Education (“Department”) released long-awaited new regulations under the federal gender equity law, Title IX of the Education Amendments of 1972, 20 U.S.C, §§ 1681 et seq. (“Final Rule”).1 Title IX prohibits discrimination on the basis of sex in all education programs and activities that receive federal financial assistance, including K-12 schools (“Schools”) and colleges and universities (“Colleges”). Discrimination on the basis of sex includes sexual harassment, which, in turn, includes sexual assault. The new regulations focus exclusively on sexual harassment and related misconduct. The effective date of the Final Rule, first proposed in November 2018, is Aug. 14, 2020.
The Department’s past Title IX enforcement activities have focused on Colleges. Therefore, over the last decade, many of those institutions ramped up their hiring of officials dedicated to handling Title IX issues. Local school districts, which are structured differently and serve a different student body, largely did not do so. While the Final Rule will require major adjustments to how all education administrators handle sexual harassment and assault complaints, this will be especially so for K-12 Schools. In order to align with the Final Rule, Schools will need to make extensive changes to their policies, practices and procedures (which school committees must approve), to assign additional staff to handle Title IX responsibilities and to provide training of all their employees and students, all in the midst of a demanding health pandemic. This article highlights certain issues the Final Rule raises generally and particularly for K-12 Schools based on a preliminary review.2
Department’s Initiative to Combat Sexual Assault in K-12 Schools
On Feb. 26, 2020, U.S. Secretary of Education Betsy DeVos announced that the Department’s Office for Civil Rights (“OCR”) would lead a new Title IX enforcement initiative intended to combat a rise of reported sexual assaults in K-12 public schools. DeVos noted that Civil Rights Data Collection for 2015–16, the most recent available school year, revealed approximately 9,700 incidents of sexual assault, rape or attempted rape reported nationwide in public elementary and secondary schools. The initiative focuses on staff-on-student sexual assaults, although it also covers student-on-student assaults.
As DeVos described it, the initiative will be a multi-pronged effort that includes, among other things, compliance reviews in school districts in each of OCR’s 12 regions examining how sexual assault cases are handled under Title IX. Additionally, OCR will review data of sexual assault and offenses that school districts submit through federal data collection. Further, the Department has proposed data collection of staff-on-student incidents by school (rather than by district).
New Title IX Regulations
Slightly more than two months after announcing its new initiative, the Department released the Final Rule extensively amending the Title IX regulations for the first time since 1975. The amendments add a definition of sexual harassment, which includes sexual assault as well as other sexual offenses.
Under the Final Rule, sexual harassment means:
Conduct on the basis of sex that satisfies one or more of the following: (1) A School or College employee conditioning education benefits on participation in unwelcome sexual conduct (i.e., quid pro quo); (2) Unwelcome conduct that a reasonable person would determine to be so severe, pervasive and objectively offensive that it effectively denies a person equal access to the School’s or College’s education program or activity; or (3) Sexual assault (as defined in the Clery Act), dating violence, domestic violence or stalking, each as defined in the Violence Against Women Act (“VAWA”).
Notably, the second prong of the definition, previously referred to as a “hostile environment” claim, is narrower than the U.S. Supreme Court’s Title VII workplace standard (severe or pervasive conduct creating a hostile work environment). The Department’s rationale for its definition is that it tracks the Supreme Court’s definition in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999) (severe and pervasive and objectively offensive conduct, effectively denying a person equal educational access). Further, the Department maintains that where unwelcome sex-based conduct consists of speech or expressive conduct, Schools and Colleges must balance Title IX enforcement with the rights of free speech and academic freedom.
Schools and Colleges will be found in violation of Title IX if they have “actual knowledge”3 of a complaint of sexual harassment and if their response is “deliberately indifferent.”4 Significantly, a School (but not a College) will be found to have actual knowledge if a complaint of sexual harassment is made to any employee of the School, from a cafeteria worker, to a bus driver, to a teacher or guidance counselor. In contrast, Colleges are deemed to have actual knowledge only if a complaint is made to the College’s Title IX coordinator (person designated to coordinate College’s Title IX compliance efforts) or to a College official with authority to institute corrective measures on behalf of the College. The Department explains its rationale for the distinction in treatment as being that younger students are often unaware of their rights and may not know to whom they should make a report.
The consequences of the distinction for Schools are major. If a School employee, such as a cafeteria worker, receives a student complaint of sexual harassment but does not inform an appropriate School staff member, such as the Title IX coordinator, the School may not respond promptly in a manner that is not deliberately indifferent. For example, the School may fail to offer the “Complainant” (alleged victim) “supportive measures” (previously known as interim measures), with or without the filing of a formal complaint, as the Final Rule requires. Accordingly, it will be important for Schools to train all staff, not just the Title IX team, about Title IX obligations on an ongoing and repeat basis given often high staff turnover.
“Deliberate indifference” is defined as a response that is “clearly unreasonable in light of the known circumstances.” A School’s failure to fulfill its mandatory response obligations could be deemed to be deliberately indifferent depending on the circumstances and could result in a finding of liability if a School is sued.
Schools must only respond to a complaint when the alleged conduct occurs in the School’s “education program or activity,” which includes “locations, events or circumstances over which the [School] exercised substantial control over both the ‘Respondent’ (alleged perpetrator) and the context in which sexual harassment occurs.” While School activities such as field trips, athletic events or conferences would be covered, the definition leaves significant gray areas, such as whether a School must address online harassment of a student.
Other Key Provisions
Rights of Parents/Guardians. Parents/guardians of K-12 students may file complaints on their behalf, as may bystanders and friends. Schools must notify parents/guardians of complaints filed against their students.
Respondents and Emergency Removals. Schools must give Respondents written assurance that they are presumed innocent and may not impose disciplinary action on Respondents until a complaint is resolved. Schools retain the authority to remove students from School on an emergency basis if the School first undertakes an individualized safety and risk analysis, determines that an immediate threat is posed to the physical health or safety of any student or other person, and provides the Respondent with notice and an opportunity to challenge a removal decision.
Title IX Coordinator. The Final Rule enhances the role and responsibilities of the School’s Title IX coordinator, the person who facilitates the complaint process, and allows Schools to appoint several staff members to the coordinator position or to deputy coordinator positions.
Investigation of Formal Complaints. Schools must investigate all “formal complaints,” which are complaints filed by a complainant or by the Title IX coordinator alleging sexual harassment against a Respondent and requesting that the School investigate. The investigator of a formal complaint may not be the same person who decides whether the Respondent is responsible for a violation. In past practice, either a principal or assistant principal often investigated and decided harassment complaints in a relatively informal manner. Under the Final Rule, the investigator must ensure that the burden of proof and the burden of gathering evidence rests on the School and not on the parties, must create a written report summarizing relevant evidence and must send each party a copy of the report at least 10 days before a decision-maker determines responsibility, if any.
Decision-Maker and Relevant Written Questions. In one of the most controversial aspects of the Final Rule, after an investigative report is completed and shared with the parties, Colleges are required to conduct live hearings and to permit cross-examination.5 The decision-maker (hearing officer) must be someone other than the investigator. Schools, in contrast, are not required to conduct live hearings and cross-examination, although they are permitted to do so. With or without a hearing, and before determining whether or not a Respondent is responsible, a School decision-maker must allow the parties to submit written, relevant questions to one another, to exchange answers and to allow limited follow-up questions. The decision-maker must decide the relevance of questions before they are presented to the parties. The decision-maker also must issue a written determination regarding responsibility that includes factual findings, conclusions, an explanation and any disciplinary sanctions.
Staffing and Training. Given the requirement for separate investigators and decision-makers and the much more formal expectations and responsibilities for each, Schools may need to assign and/or hire additional staff (admittedly challenging during a pandemic), or they can consider pooling resources/positions with other nearby schools and/or outsourcing certain positions, at least until training programs can be developed. The Final Rule specifies particularized training for these and other positions and requires that training materials be posted publicly.
Evidentiary Standard. In another controversial provision, Schools (and Colleges) are allowed to choose between two evidentiary standards for the decision-maker to determine if a student is responsible for a policy violation — either by a preponderance of the evidence (POE) (51 percent certainty that alleged facts are true) or by clear and convincing evidence (CCE). A School must, however, use the same standard for complaints against both students and employees. Collective bargaining agreements governing School employees often require using a CCE standard for proceedings concerning employees. In contrast, most administrative proceedings, including ones applicable to students, use a POE standard.
Informal Resolution. Under the Final Rule, incidents of alleged student-on-student harassment may be resolved through informal means, such as restorative justice and mediation. Cases involving alleged staff-on-student harassment may not be resolved informally. Many advocates and survivors question whether allegations of sexual misconduct are ever appropriate for informal resolution.
While much more is still to be learned about the new Title IX regulations, it is clear that they will require K-12 Schools to update their policies, practices and procedures; to handle complaints of sexual harassment and assault with more formality and procedural safeguards; to identify additional staff to process those complaints; and to provide prescribed training to Title IX and all other school staff.Judy Levenson is principal at the Law Office of Judy Levenson. She represents clients in the areas of civil rights, schools and education law, and municipal and ethics law. She also conducts independent investigations of internal complaints of discrimination, Title IX violations and bullying, and serves as an independent hearing officer in administrative proceedings. Additionally, Levenson provides customized legal compliance training programs. Levenson’s pragmatic approach is informed by her prior work as a Massachusetts assistant attorney general in the office’s Civil Rights Division and its Administrative Law Division, as general counsel to the State Ethics Commission and as a hearing officer-consultant to the Massachusetts Board of Education. Before launching her private practice, she was a partner with Brody, Hardoon, Perkins and Kesten LLP in Boston. Contact Levenson here.
1The official version of the Final Rule is published in the Federal Register and available at www.federalregister.gov/documents/2020/05/19/2020-10512/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal.
2 The Civil Rights & Social Justice Section Council plans to provide a more in-depth discussion of the Final Rule at a later time, after further analysis of the 2,082-page document in which it is contained. This article is not intended to be comprehensive or definitive but rather to serve as a launching point for further discussion.
3 This and other terms in quotations are defined in the Final Rule.
4 In notable contrast, recent Massachusetts trial court decisions suggest an emerging trend concerning sexual harassment claims against school employees brought under M.G.L. ch. 151C, holding schools strictly vicariously liable for their employees’ sexual misconduct regardless of whether the school had actual notice or was deliberately indifferent in responding.
5 The Final Rule provides that at either party’s request, the College must provide for the live hearing, including cross-examination, to occur with the parties located in separate rooms with technology enabling the parties to see each other. Only advisers to the parties, which may include lawyers, may ask questions; the parties may not question each other directly.