Updated: May 17, 2021

By: Debra D. Owen

Date: August 8, 2020

Title IX of the Education Amendments of 1972, as amended, requires that public school districts eliminate discrimination on the basis of sex in any education program or activity that is offered or sponsored by the district. On May 29, 2020, revisions proposed by the Secretary of Education to the Title IX regulations found in Title 34 of the Code of Federal Regulations were officially published in the Federal Register.  Despite multiple attempts to delay the effective date because of the challenges currently facing school districts, the amendments became effective August 14, 2020. 

The new regulations primarily address how a school district must respond to allegations of sexual harassment.  Sexual harassment is specifically defined as conduct on the basis of sex through which an employee conditions participation in the programs and activities of the district 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 education program or activity; or the conduct constitutes sexual assault, dating violence, domestic violence or stalking as defined in federal law.

In addition to publicizing a non-discrimination policy with certain specified content, a school district must identify one or more Title IX Coordinators.  A Title IX Coordinator must receive reports of sexual harassment made verbally or in writing; during business and non-business hours; and in person, by mail, by telephone, electronic mail or any other means, using contact information that must be widely publicized on the district’s web site and elsewhere.  Once that report is made, the Title IX Coordinator must implement a district grievance process that complies with the requirements of the regulations, during which time the accused respondent is presumed not to be responsible for the alleged conduct.   Additionally, these regulatory amendments specifically provide for the equitable treatment of complainants and respondents and for the protection of Constitutional and civil rights, including but not limited to, free speech, due process, representation by an attorney of other advisor, and consistent and equitable application of the standard of proof—whether preponderance of the evidence or clear and convincing--throughout the grievance process.

In response to a report, the Title IX Coordinator must discuss with the complainant the availability of supportive, non-disciplinary measures such as counseling, mutual no-contact restrictions or modification of work or class schedules and explain the process for filing a formal complaint. If a formal complaint is filed, signed either by the complainant or by the Title IX Coordinator, an investigator who has no bias or conflict of interest must gather all relevant evidence; provide both parties at least ten days to examine and respond to the evidence and then; considering any responses given by the parties, complete an investigation report.  Alternatively, a district may offer, but not require, participation in an informal resolution process such as mediation. If the conduct alleged in the formal complaint would not constitute sexual harassment as defined in the regulations even if proved, did not occur in the recipient’s education program or activity, or did not occur against a person in the United States, then the formal complaint must be dismissed.  The complaint may also be dismissed if the complainant withdraws the complaint or any allegations in writing; if the respondent is no longer enrolled or employed by the school district; or if specific circumstances prevent the school district from gathering evidence sufficient to reach a determination of responsibility.

The completed investigation report must be submitted to a decision-maker who is not a Title IX Coordinator or investigator.Post-secondary institutions must provide a live hearing, but such hearings are optional for elementary and secondary schools. With or without a hearing, both parties must be given at least ten days to review the report and to ask and receive answers to questions to the other party or to witnesses provided those questions are deemed relevant by the decision-maker.The decision-maker must then objectively evaluate all relevant evidence, make objective credibility determinations and issue a very detailed written determination that includes the allegations that could constitute sexual harassment; a description of the procedural and  investigatory steps taken; findings of fact and conclusions pursuant to the district’s code of conduct the rationale for each decision regarding responsibility, any disciplinary sanctions imposed and any other remedies designed to restore or preserve equal access to the  district’s programs and activities and the procedures and permissible bases for either party to appeal. The written determination must be issued simultaneously to both parties.

If appealed, a different appellate decision-maker must give both parties a reasonable, equal opportunity to submit a written statement supporting or challenging the outcome; issue a written decision describing the result of the appeal and the rationale for the result; and provide the written decision simultaneously to both parties.

The regulatory amendments prescribe these and other requirements for the grievance process by which a school district must respond to allegations of sexual harassment, including extensive training for Title IX Coordinators, investigators or others involved in investigations, hearings, appeals or informal resolution processes. A school district that has not adopted a compliant grievance policy and procedures or has not effectively trained those individuals involved in the process should act as quickly as possible to do so.

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