NEW TITLE IX REGULATIONS: What You Need to Know Before They Go Into Effect
On May 6, 2020, the US Department of Education issued its long-awaited final regulations concerning sexual harassment and sexual assault in K-12 schools, colleges and universities. The new regulations, which take effect on August 14, 2020, include some significant changes in the requirements for schools that receive complaints of sexual harassment. While the most dramatic changes apply to colleges and universities, elementary and secondary districts will see some differences. Some of the most notable changes are discussed here.
First, under the new regulations, educational institutions are only required to respond to allegations of sexual harassment that they actually know about, whether or not they “should have” known. An elementary or secondary school will be deemed to know about harassment if any employee witnessed it or was told about it. At the post-secondary level, however, notice must be provided to Title IX coordinator, or to someone with authority to institute corrective measures. Colleges and universities may choose to require all employees to report allegations of sexual harassment to the Title IX coordinator, but they may also decide that some staff should be able to discuss sexual harassment allegations with students without being required to report them. The identity of the Title IX coordinator must now be prominently publicized on all school district and college websites.
Once a school knows about sexual harassment, whether or not a formal complaint is filed, it must respond promptly by offering “supportive measures” to the alleged victim (called the “complainant” in the regulation), which may include counseling, extensions of course deadlines, mutual no-contact orders, and other non-disciplinary measures. A student who is accused of sexual harassment or assault (the “respondent”) may be removed on an emergency basis only if he or she is found to pose an immediate threat to the physical health or safety of another individual. Otherwise, supportive measures may not “unreasonably burden” the other party. The respondent may not be subjected to discipline or actions that are not “supportive measures” unless the institution follows its full grievance procedures.
Under the new regulations, most educational institutions will need to develop grievance procedures that are significantly different from those currently in force. Use of these procedures will be triggered by a formal complaint which may be filed by either the complainant1 or the Title IX coordinator. In either case, an investigation must be completed by an unbiased and well-trained individual, within a “reasonable timeframe,” to be described in the procedure. The regulations require that both parties receive detailed written notice about the allegations before they are interviewed, and about the evidence before the investigation is concluded. The investigator must also create an investigative report that summarizes the evidence, send it to both parties, and allow them to respond. Both parties may have the advisor of their choice who may be an attorney, and who may accompany them to any meeting or proceeding during the grievance process.
Under the new regulations, a decision-maker(s), who is not the investigator or the Title IX coordinator, must separately review the evidence to determine whether to find the respondent responsible for sexual harassment. At the K-12 level, this decision need not involve a hearing, but both parties must be allowed to submit questions for the decision-maker to ask of any party or witness. Post-secondary institutions must provide a live hearing, including cross-examination by each party’s advisor of the other party and of any witnesses. At all levels, the decision maker(s) must issue a written determination that describes the procedural steps taken, the findings and conclusions, and any remedies awarded. Remedies may include both discipline against the respondent and remedies designed to restore or preserve the complaint’s equal access to the program.
The new regulations include other changes, including in the definition of sexual harassment, the procedural requirements for submitting and responding to complaints, and the use of informal resolution procedures. GHS LLP attorneys are available to provide additional information, answer your questions, and train your staff. We will host a free webinar, on May 18, 2020, from noon to 1:30 p.m., to provide more in-depth information on this important topic to clients and other friends. Clients who have not received the webinar invite by May 12, 2020 should contact us.
If you have any questions regarding this Note, please contact the GHS LLP lawyer with whom you usually work, or contact the author, Katherine Riggs at +1 (619) 564-8400 or at firstname.lastname@example.org.
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