Last week, the U.S. Department of Education (“DOE”) released new Title IX regulations that will go into effect on August 14, 2020. These regulations require training and changes to school district policies and procedures regarding sexual harassment. Among the changes are:
Notice of Sexual Harassment
The regulations require a school district to respond when the district has actual notice of sexual harassment. The new regulations now make explicit that a K-12 school district has actual knowledge when an allegation is made known to any district employee.
Complaint and Investigation Process
The new regulations require the involvement of three different individuals to address sexual harassment complaints: the complaint manager (usually the Title IX Coordinator); the investigator, and the decision-maker. Under the new regulations, all individuals involved in managing, investigating, and deciding sexual harassment complaints must be trained on conducting investigations free of bias.
The new regulations require that the alleged harasser, referred to as the respondent, receive written notice of the allegations before any investigatory interview. During the investigation, the complainant and respondent must have equal opportunities and time to present and respond to evidence.
A school district may facilitate an informal resolution such as mediation provided that the complainant and the respondent consent, but the school district cannot compel the complainant or respondent to engage in an informal resolution. Informal resolutions are never available in situations where an employee is alleged to have sexually harassed a student.
Notice of Title IX Coordinators
Previously, school districts only needed to notify students and employees of the Title IX Coordinator’s contact information. Now, school districts must also notify applicants for employment, parents and guardians of students, and unions of the Title IX Coordinator’s contact information.
The new regulations narrowed the definition of sexual harassment into three categories. Under the new regulations, one category of sexual harassment is unwelcome conduct that is severe, pervasive and objectively offensive that it denies educational access. This deviates from prior guidance issued by the DOE that previously stated that the conduct had to be severe, pervasive or objectively offensive.
Burden of Proof
A school district must now state in its complaint process the standard of proof that will be used to evaluate evidence. The school district may use a preponderance of the evidence standard (lower threshold) or a clear and convincing standard (higher threshold).
Policy Review and Training
School Committees will need to update their policies to conform to the new law which goes into effect on August 14th and provide training to administrators involved in the management, investigation, and decisions regarding sexual harassment complaints. Our office is available to review and update policies and to provide the required training for administrators.
If you have questions regarding the new regulations, please contact us.
This update is provided for informational purposes only and does not include all of the changes in the new regulations. This update should not be considered legal advice.