The Revised Title IX Rules Are Becoming Effective — Is Your School Ready?
Posted on 08/04/2020 at 10:08 AM by Robert Porter
As elementary, secondary, and post-secondary schools race to prepare programs and campuses for the return of students amid a pandemic, it would be easy to lose sight of other looming compliance challenges.
However, earlier this summer, the federal Department of Education issued sweeping changes to Title IX regulations that significantly change how schools must respond to, investigate, and address allegations of sexual harassment. The federal Department of Education’s new Title IX rules are scheduled to go into effect on August 14, 2020. Unless litigation filed by the Attorneys General of numerous states is successful in delaying or blocking implementation, each school and educational institution must be ready to comply with the new rules in the upcoming year.
If they have not already done so, administrators should immediately take the following steps to implement the recent Title IX regulatory changes:
1) Revise Policies. If your school’s Title IX and grievance policies on sexual harassment predate May 2020, you should consider getting outside assistance to do a prompt review and update. Initiating an investigation or processing a formal complaint using out-of-date standards or processes can create grounds for appeal and reversal of any corrective action actually taken. 34 CFR 106.45(b)(8)(i)(A).
At a minimum, the new policies should address the following:
A) The revised definition of sexual harassment, as set forth in the rules. The Department has drawn upon concepts from the Clery Act and VAWA, elements of “quid pro quo” harassment, and the U.S. Supreme Court’s “severe, pervasive and objectively offensive” standard from the U.S. Supreme Court’s ruling in Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648 (1999) in the new rules.
B) The updated expectations of “actual knowledge”.
Higher education institutions have been granted built-in flexibility to determine which campus officials can receive “actual knowledge’ of a complaint, which triggers certain obligations for the Title IX coordinator.
Conversely, the revised rules create new liability risks for k-12 schools. Far more k-12 employees will be considered to have “actual knowledge” of a complaint of sexual harassment. Title IX coordinators in the k-12 setting will need to remain vigilant on issues relating to intake, investigation, and remedial action.
C) Provide clarity on “supportive measures”. The Department expects that your Title IX coordinator will be ready and willing to take certain remedial or corrective measures in an attempt to ensure equal access without requiring the filing of a formal complaint.
D) Update and publish your institution’s “grievance procedure”. When doing so, give thought to your general descriptions of the processes relating to the investigation, separation of functions, burdens of proof, and scope of potential sanctions.
2) Ensure Fair Investigations. Federal guidelines contemplate a more formal process than many schools and institutions currently use. If a school fails to provide a respondent with sufficient detail about the allegations, advance notice of investigatory meetings, the opportunity to obtain an advisor, or any other aspect of the newly required procedural process, the institution may be unable to defend its actions in subsequent litigation.
3) Provide For Avenues of Review and Appeal. New federal guidelines require written decisions which clearly apply facts and law, and which can be challenged on appeal through specified criteria. Schools should act to ensure that the procedures are in place and published before they need to be utilized.
4) Train School and Institution Employees. Finally, schools must train staffers about sexual harassment, as well as the process relating to the investigation, hearing, and adjudication of sexual harassment claims. Schools also are required to post the training materials online. Together, these requirements make it crucial for schools and institutions to obtain proper and timely Title IX training.
School officials who have additional questions about Title IX compliance after reading this summary, or need help ensuring policies and procedures are up to date, are encouraged to follow up with the education law attorneys at Dickinson Law.
Categories: Education Law
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