New Title IX regulations now in effect

Kentucky School Advocate
September 2020

By Katrina Kinman

KSBA Director of Policy & eMeeting Services

and John C. Fogle III

Staff Attorney

New Title IX regulatory language introduced by the U.S. Department of Education went into effect on Aug. 14, and the changes were substantial. What does the new regulation entail?

The new Title IX regulation contains extensive new standards and investigative procedures applicable to serious sexual harassment in schools. The regulation creates a rigorous definition of “Title IX sexual harassment” requiring severe, pervasive and objectively offensive or defined criminal sexual misconduct or “quid pro quo” harassment at the hands of a district employee. The regulation is aimed at very serious sexual misconduct. Under the regulation, a school must be “deliberately indifferent” to complaints before the Office of Civil Rights will find a violation.

The regulation provides that a school district will have actual notice of sexual harassment if any employee is aware of allegations. This is a different standard than what the case law requires for potential liability in court where knowledge by district personnel with authority to implement a significant response is generally required. The Title IX coordinator is to explore and oversee “supportive measures” when sexual harassment is reported whether or not a formal complaint is filed.

There are now more significant hurdles when complainant chooses to file a formal complaint and requires dismissal of the complaint if the conduct alleged does not meet the definition of “Title IX Sexual Harassment” or did not occur as part of school-sponsored programs or activities.

Complainants and respondents are to be treated equitably. The regulation requires a presumption that the respondent did not engage in harassment.

Both parties are entitled to advisers throughout separate investigative and decision-making processes. The investigative, decision-making and appellate functions must be performed by different district employees or contractors who do not have a conflict of interest. Proposed policy does not require a live hearing but allows the parties to review investigative evidence and investigative report and to pose questions to each other and witnesses before a district decision maker arrives at a determination regarding responsibility. After such a determination and any appeal, other district procedures and law can be applied to hearing level discipline (e.g. expulsion hearing or employee hearings).

Part of the rationale for the changes stem from a high volume of litigation at the postsecondary level where alleged perpetrators were denied cross-examination and other procedural rights.

For starters, all districts must prominently display on their websites the contact information for the Title IX Coordinator, Title IX Sexual Harassment training materials and applicable policies.

KSBA recommends reviewing the optional training materials and policy references at KSBA.org/TitleIXResources.aspx and consulting school board counsel. KSBA legal and policy staff are also standing by to answer any questions.