On May 6, 2020, the U.S. Department of Education published its newly updated Title IX regulations prohibiting sex discrimination at federally funded institutions.  The new regulations, which apply to all federally funded institutions, including public K-12 school districts, require significant changes to district policies and procedures for handling Title IX matters.  The U.S. Department of Education requires compliance with the new regulations by August 14, 2020.

This legal update outlines five of the key changes affecting K-12 school districts and the necessary policy changes required for compliance.  For information regarding a change not addressed below, please contact our office.

KEY CHANGES TO TITLE IX AND HOW TO ADDRESS THEM

Definition of Sexual Harassment

1. What's New?

The new regulations have modified the definition of sexual harassment for consistency with Supreme Court precedent, the Clery Act, and the Violence Against Women Act.  Sexual harassment is now defined in Title IX as one of three things: (1) quid pro quo, (2) unwelcome conduct determined by a reasonable person to be so severe, and pervasive, and objectively offensive that it effectively denies a person equal access to the school's education program or activity[1], or (3) any instance of sexual assault (as defined in the Clery Act), dating violence, domestic violence, or stalking as defined in the Violence Against Women Act.

The new regulations effectively narrow the definition of sexual harassment, thereby making allegations more difficult to substantiate during a Title IX investigation.  To this end, the narrowed definition of sexual harassment increases protections for First Amendment speech and academic freedom in the classroom.

1. How Do We Address This?

To address this change, school districts should update Board Policies, Administrative Regulations, and Title IX documentation to include the new definition.  Additionally, Title IX staff, including the Title IX Coordinator and all district investigators should be trained on the new standard of sexual harassment for consistency and compliance among the handling of all Title IX complaints.

Notice of Misconduct Triggering School District's Response

1. What's New?

Under the old regulations, any constructive notice of sexual harassment, sexual assault, or quid pro quo triggered a district's Title IX response.  Under the constructive notice standard, schools were responsible for responding to all incidents of sexual misconduct if the school “should have known” about the misconduct.

The new regulations have increased this standard from constructive notice to actual notice.  This means that schools are required to respond to all incidents of known sexual misconduct, rather than incidents that were not known, but should have been known.

Under the new regulations, Title IX procedures must be followed upon actual knowledge of sexual harassment by any elementary school or secondary school employee, not just Title IX Coordinators.  This change is significant in that it triggers district liability should any district employee have knowledge of sexual harassment.

1. How Do We Address This?

Districts can properly address this regulation change by training all district employees to immediately report any and all incidents of sexual harassment.  To avoid district liability for inaction, employees should seek assistance from the Title IX Coordinator if they are unsure of whether a specific incident is sexual harassment.

Standard of Proof for Title IX Matters

1. What's New?

Title IX regulations formerly required each Title IX complaint to be evaluated using the preponderance of the evidence standard of proof.  Under the preponderance standard, the burden of proof is met when the evidence supports a finding that there is a 51% chance that the claim is true.  This standard is often referred to as the 50% and a feather standard.  It is the same standard of proof used in civil cases.

The new regulations allow school districts to decide between either the preponderance of the evidence standard, or the stricter standard of clear and convincing evidence.  The new regulations state however, that whichever standard is adopted, must be used consistently for all Title IX complaints, including those which involve employees.

1. How Do We Address This?

To address this change, districts should review Board Policies and Administrative Regulations to determine which standard is already employed for Title IX matters and make changes if necessary.  Note that many districts already utilize the preponderance of the evidence standard as it was the required standard of proof under the Obama Administration.  Districts should review policies to ensure that a uniform standard of proof is utilized for all Title IX matters, regardless of whether the complainants are students, staff, or third parties.

Live Hearings and Written Questions

1. What's New?

Perhaps one of the biggest changes to the Title IX regulations is the requirement for live Title IX hearings for postsecondary institutions.  These hearings allow both parties an opportunity to engage in cross examination through party advisors.  While the hearing process is now mandatory for postsecondary institutions, they are not required for K-12 school districts.  Rather, K-12 districts may elect to either engage in a live hearing process, or simply provide both parties an opportunity to submit and respond to written questions from the other party.

The Department of Education states that, “with or without a hearing, after the school has sent the investigative report to the parties and before reaching a determination regarding responsibility, the decision-maker(s) must afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party.”

1. How Do We Address This?

K-12 districts must first determine whether they wish to offer a live hearing process for Title IX complaints.  Should a hearing process be adopted, the District should develop hearing procedures consistent with the new Title IX regulations, which should be reflected in Board Policies and Administrative Regulations.

Regardless of whether districts adopt a live hearing process, all districts should develop a process for allowing parties to a Title IX complaint to ask and answer written questions prepared by the opposing party or parties.  This additional process should be completed prior to the final determination of the Title IX investigation.

Appeal Rights

1. What's New?

The Final Rule states that a school must offer both parties an appeal from a determination regarding responsibility, and from a school's dismissal of a formal complaint or any allegations therein, on the following bases: procedural irregularity that affected the outcome of the matter; newly discovered evidence that could affect the outcome of the matter; and/or Title IX personnel had a conflict of interest or bias that affected the outcome of the matter.

1. How Do We Address This?

To address this change in Title IX regulations, districts must review and update Board Policies and Administrative Regulations to provide appeal rights to both parties, if not already provided. Policies should include the appropriate bases for appeal, as well as any district-specific appeal processes for complaints of discrimination.

Parker & Covert has extensive experience in handling Title IX complaints and drafting Title IX policies.  Should you have any questions or need assistance in reviewing your District's Title IX policies, please contact us by e-mail or by telephone at (714) 573-0900 (Southern California office) or (916) 245-8677 (Northern California office).

[1] Note that Title IX guidance previously defined sexual harassment as conduct that is sufficiently severe OR persistent OR pervasive that it adversely affects a student's education or creates a hostile or abusive educational environment.