U.S. DOE issues final Title IX regulations |
On Board Online • June 8, 2020
By Kate Gaffney
Senior Staff Counsel
The U.S. Department of Education recently issued final Title IX regulations that for the first time codify rules specifically pertaining to sexual harassment. The regulations serve to implement Title IX of the 1972 Education Amendments - a federal civil rights statute which prohibits school districts, as recipients of federal funding, from engaging in practices or activities that discriminate on the basis of sex, including sexual harassment. Until now, the rules used to determine whether sexual harassment in violation of Title IX has occurred have been mainly established by case law and federal agency guidance and interpretations.
The new federal regulations have an effective date of Aug. 14, 2020. They will impact how districts in New York respond to allegations of sexual harassment involving both students and staff. In taking steps toward compliance, districts will also need to consider potential overlaps between the regulations and existing state laws that also prohibit sexual harassment. Therefore, districts should consult with their school attorneys to ensure that their policies and practices comply with both the final Title IX regulations and existing state law.
The regulations and their practical implications will be discussed in greater detail during NYSSBA's 2020 Summer Law Conference. In addition, NYSSBA's Policy Services will be developing suggested updates to current school district policies.
Following is a summary of some of the more general provisions included in the final regulations. Pertaining to a new definition of sexual harassment, the designation of Title IX Coordinators, policy requirements, training, and record retention. Accompanying this summary is a Q&A on procedural requirements for addressing alleged sexual harassment misconduct, including procedures for reporting, investigating and making determinations regarding any such allegation.
Definition of sexual harassment. Sexual harassment in a school setting occurs when (1) a district employee conditions the provision of an aid, benefit, or service on an individual's participation in unwanted sexual conduct; and/or (2) there is unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to a district's education program or activity; and/or (3) there has been an incident of sexual assault, dating violence, domestic violence or stalking as defined under federal law.
In this context, an education program or activity includes locations, events or circumstances, over which a district exercises substantial control over both the individual reported to have committed conduct that could constitute sexual harassment and the context in which the sexual harassment occurs.
Importantly, the regulations provide that the conduct alleged to constitute sexual harassment must have occurred within the United States, which raises questions as to what happens when the misconduct occurs, for example, during student trips abroad.
Designation of a Title IX Coordinator. Districts must designate at least one employee to be their Title IX Coordinator and authorize such individual(s) to coordinate the district's efforts to comply with its responsibilities under the regulations.
In addition, districts must notify students, parents or legal guardians, employees and unions of the name and specified contact information for the designated Title IX Coordinator(s). That notification must also state that inquiries about the application of Title IX and its regulations may be directed to the district's Title IX Coordinator or the Assistant Secretary of Education, or both.
Policy requirement. School districts must have a policy that states they do not discriminate on the basis of sex in the education programs or activities they operate, including admission and employment, and that they are required by Title IX and its corresponding regulations not to discriminate in such a manner.
Publication requirement. Districts must prominently display their Title IX anti-discrimination policy and the Title IX Coordinator(s) contact information on their website, if any, and in each handbook or catalog it makes available to students, parents or legal guardians, employees and unions.
Training requirements. The new regulations require that Title IX Coordinator(s), investigators, decision-makers, and those facilitating an informal resolution process, if applicable, receive training in a number of areas specified in the regulations.
Retention of records. Districts must maintain for a minimum of seven years certain specified records relating to sexual harassment including, for example, investigation records, determinations, remedies provided, disciplinary sanctions imposed and appeal records. Records of mandated training materials also must be maintained.