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New Title IX Regulations: Your Questions Answered

July 27, 2020 Charli Searcy

American Capitol for Title IX regulations

The U.S. Department of Education released new Title IX regulations that exclusively address how schools respond to on-campus sexual harassment. Districts are required to begin complying on August 14, 2020. To help you get started, let’s consider common questions about the new rules and how they affect your organization.

For a visual guide to your next steps after receiving a sexual harassment report or formal complaint in your district, consult this infographic.

Basics

What major issues do the new Title IX regulations address?

The regulations define and describe roles and requirements to help school districts and colleges address sexual harassment. For example, the new rules:

  • Define sexual harassment
  • Specify the sexual harassment grievance process, including investigations, hearings, and the appeals process
  • Describe the role of the Title IX Coordinator, investigators, and decision makers
  • Discuss publication and notification requirements for non-discrimination policies and the Title IX coordinator’s contact information
  • Explain and require supportive measures
  • Provide stipulations for maintaining records

Did the definition of sexual harassment change?

Yes. The new regulations define sexual harassment as conduct on the basis of sex that satisfies one or more of the following:

  • Quid pro quo (something for something), which happens when a district employee conditions an aid, benefit, or service 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 school’s education program or activity.
  • Sexual assault, dating violence, domestic violence, or stalking.

All district employees should be taught what constitutes sexual harassment and trained to recognize it since they will be required to report this misconduct. 34 CFR § 106.30

When is a district considered to have been put on notice about sexual harassment?

A district receives notice when any elementary or secondary school employee, any Title IX Coordinator, or any official with authority:

  • Witnesses sexual harassment
  • Hears about sexual harassment or harassment allegations from a victim or third party
  • Receives a written or verbal complaint about sexual harassment or sexual harassment allegations

Federal Register, referencing OCR’s 2001 Guidance

Complaints

Who can report sexual harassment?

Anyone may report sexual harassment, including but not limited to the alleged victim or third parties such as their parent(s), friends, or classmates. Reports can be made to the Title IX Coordinator in person, by mail, telephone, or email, or by other verbal or written means any time, including non-business hours. 34 CFR § 106.30

Are the complainant and reporter the same person?

No. The regulations define a “complainant” as the alleged victim of sexual harassment, whereas a reporter is any individual who notifies a district employee or Title IX Coordinator of sexual harassment on behalf of the alleged victim. The Title IX regulations permit a complainant, but not a third-party reporter, to file a formal complaint of sexual harassment. 34 CFR § 106.30

Who are the parties to a sexual harassment complaint?

A sexual harassment complaint typically involves the complainant and respondent. The rules define complainant as a person who is alleged to be the victim of conduct that could constitute sexual harassment. This person must be participating in or attempting to participate in the education programs or activities of the district where the complaint is filed. The respondent is a person who has been reported to be the perpetrator of conduct that could constitute sexual harassment. 34 CFR § 106.30

What is a formal sexual harassment complaint?

A formal complaint is a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment committed by a respondent and requesting that the district investigate the allegation of sexual harassment. It is important to note that a report is different from a formal complaint. Both a report and formal complaint require the district to promptly respond. However, a report does not have to be in writing, can be made by the alleged victim or third party, and may be for a different purpose than desiring an investigation.

If a complainant desires an investigation, then he/she must proceed with filing a formal complaint. While the Title IX Coordinator cannot file a complaint, he or she can sign a complaint to trigger an investigation, even if the complainant declines to do so. 34 CFR § 106.30; 106.8(a)

How should our district respond to a sexual harassment complaint?

Your district’s response is always triggered by a report of sexual harassment made to the Title IX Coordinator or to any employee, even if it is not a formal complaint. Let’s say your district or school receives a report of sexual harassment, as defined by Title IX, against a person in the United States participating or attempting to participate in a district education program or activity. That means your district has substantial control over the context and the alleged harasser. You are required to respond promptly in a manner that is clearly reasonable in light of the known circumstances. If you do not, your district risks being sued for deliberate indifference.

Whether or not a formal complaint is filed, and upon receiving a report of sexual harassment, your Title IX Coordinator must promptly contact the complainant to offer supportive measures. These measures may include, but are not limited to, counseling, modification of work or class schedules, or restricted contact between the parties. The Title IX Coordinator must also explain to the complainant the option for filing a formal complaint and respect the complainant’s wishes regarding supportive measures.

If the complainant files a formal complaint or the Title IX Coordinator signs the complaint, then your district is required to investigate. 34 CFR § 106.44

How do the rules address retaliation concerning a sexual harassment complaint?

The rules prohibit retaliation against anyone for making a report or complaint, testifying, assisting, or participating or refusing to participate in a sexual harassment investigation, proceeding, or hearing. Make sure everyone involved in the grievance process understands that the district will not tolerate attempts to intimidate, threaten, coerce, or discriminate against any individual as a way of interfering with their rights or privileges under Title IX. 34 CFR § 106.71

Investigations

What does a sexual harassment investigation entail?

An investigation is only required by Title IX when a formal complaint is filed by the complainant or a Title IX Coordinator signs a complaint. However, your local policy may also apply. If a report or complaint also involves bullying, which is a broader category than Title IX, state law requires your district to investigate per FFI (LOCAL).

The sexual harassment formal complaint investigation should include:

  • Grievance process: Your district must ensure your adopted grievance procedure fulfills the requirements per the new regulations to ensure a fair, equitable, thorough, and timely process for all parties involved.
  • Hearing process: While your district is not required to have a hearing, it may decide to hold one if it serves the best interests of those involved. However, it is important to always consult your local policy for guidance. Regardless of whether a hearing is held, districts are required to give the complainant and respondent the opportunity to pose written questions to each other, similar to a cross-examination during a trial, but in written form.
  • Potential emergency removal: The district may remove a respondent from its education program or activity on an emergency basis if it undertakes an individualized safety and risk analysis, determines there is an immediate threat to the physical health or safety of any student, and provides the respondent with notice and an opportunity to challenge the removal or administrative leave, if the respondent is an employee.
  • Appeals process: Your district must offer both parties the opportunity to appeal a determination regarding responsibility or dismissal of a formal complaint. 34 CFR § 106.44; § 106.45

What training do the individuals who facilitate an investigation need?

Your district should identify the individuals who will facilitate the complaint resolution process, including your Title IX Coordinator, investigator, decision maker. These individuals must be properly trained on the definition of sexual harassment, scope of the district’s education programs or activities, methods for conducting an investigation and grievance process, and impartiality. 34 CFR § 106.45

What records are we obligated to keep concerning the investigation?

Your district is required to maintain the following documents obtained as a result of a sexual harassment report or complaint for seven years:

  • Each sexual harassment investigation, including any determination regarding responsibility. Your district should also retain any audio or audiovisual recording or transcript concerning the investigation.
  • Appeals and results.
  • Informal resolutions and results.
  • All materials used to train Title IX Coordinators, investigators, decision makers, and anyone who facilitates an informal resolution process.
  • Documentation of the supportive measures taken. 34 CFR § 106.45

Title IX Coordinators

What changes concerning Title IX Coordinators should we know about?

The requirement that districts designate at least one employee to serve as Title IX Coordinator is not new. However, the regulations specify that the designated employee must be known as the Title IX Coordinator and must be authorized to coordinate the district’s compliance efforts. 34 CFR § 106.8

Who must we notify of the Title IX Coordinator’s contact information?

There must be proper notification of the Title IX Coordinator’s contact information, including his/her name or title, office address, email, and telephone number. This notification must be given to applicants for admission and employment, students, parents or legal guardians of elementary and secondary students, employees, and all unions or organizations holding professional agreements with your district.

If your district has a website, you must post the Title IX Coordinator’s contact information there. You must also publish the information in any handbook or catalog that your district makes available to the individuals who are required to be notified. 34 CFR § 106.8

Can the Title IX Coordinator also be an investigator and decision maker?

The decision maker, who will determine responsibility regarding Title IX sexual harassment allegations, cannot be the same person as the Title IX Coordinator or the investigator. However, the Title IX Coordinator can be an investigator. 34 CFR § 106.45

Looking ahead

What else should our district consider?

Because your district is required to comply with the new regulations, careful consideration regarding your staff and training should be a priority. It is important to update your policies concerning Title IX, specifically regarding sexual harassment; adjust your staffing to include the necessary persons to facilitate a resolutions process; establish a clear sexual harassment reporting hierarchy for your employees; and make all other necessary changes to fit your district’s needs and properly comply with the regulations.

Where can we find additional training information?

Fund Liability program members have access to expert advice, training, and resources on risks such as inappropriate relationships, cyberbullying, and discrimination. For more information or to request training on Title IX issues, please contact TASB Legal Liability Risk Consultant Charli Searcy. If you need legal advice or have questions about your policies, contact TASB Legal Services at 800.580.5345 or TASB Policy Service at 800.580.7529.

Tagged: compliance, "legal topics", "Title IX"