Loyola University School of Law, JD 2022
On May 19, 2020, the Department of Education published a final Title IX regulation that changes the rights and responsibilities for schools, complainants, and respondents. In summary, these regulations respond to the need to provide a prompt and just response to individuals who have suffered sexual harassment and provide due process for an alleged perpetrator. These changes create a standard grievance process, define conduct that constitutes sexual harassment, outline conditions that activate a school’s obligation to respond, impose a minimum standard of school response, and establish procedural due process protections.
This is the first time since 1975 that the Education Department has made a formal Title IX rule. There has instead been a series of non-binding documents including guidance released in 1997 and 2001, a now-withdrawn Dear Colleague letter in 2011, a now withdrawn Q & A document in 2014, and a Q & A document in 2017. This final rule followed an 18-month notice and comment period but imposes compliance by August 14, 2020. This three-month window, during a pandemic, creates a tight timeline for schools to comply with the new regulation which will likely require significant changes to their codes of conduct and training of personnel.
For the first time, the Education Department has defined sexual harassment under Title IX. The rules adopt a quid pro quo type of harassment where an employee requires unwelcome sexual conduct for some type of benefit and adopts the definition of sexual assault from the Clery Act and the definitions of dating violence, domestic violence, and stalking from the Violence Against Women Act. Outside of these types of sexual harassment, the regulations also define sexual harassment as “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access” to education or activities.
The language “so severe, pervasive, and objectively offensive” to deny an individual equal access to education programs and activities was used in Davis v. Monroe County Board of Education. This became the standard for a private right of action for damages if a school showed deliberate indifference to violations of Title IX. This is different from the standard for workplace harassment that recognizes misconduct that is only severe or pervasive. Because the standard now requires all three elements, it may be more difficult for a complainant to hold a school liable for sex discrimination.
The regulations also adopt the “actual notice” standard from Gebser v. Lago Vista Independent School District. Under this standard, a school is responsible for a complaint if they have received actual notice of sexual harassment. This includes giving notice to the Title IX Coordinator or any employee of an elementary and secondary school. This is also a more restrictive requirement for holding a school liable because constructive notice and vicarious liability are now insufficient to constitute actual knowledge.
The regulations adopt the “deliberate indifference” standard from the Gebser/Davis framework but adapts and imposes mandatory and specific obligations on recipients that are not usually required under the standard. The regulations require the response to be prompt without defining specifically what constitutes “prompt.” However, it does provide that “a recipient is deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light of the known circumstances.”
The new regulations also require the Title IX coordinator to contact the complainant to discuss and offer supportive measures. These supportive measures are available with or without a formal complaint and are non-disciplinary and non-punitive individualized services that could include counseling, extensions of deadlines, modifications of work or class schedules, and mutual restrictions on contact between the parties. The responsibility to coordinate and implement these supportive measures falls on the Title IX Coordinator.
Until the final determination by a decision-maker, who is not the Title IX Coordinator, the respondent is presumed not responsible for the sexual harassment and no disciplinary action can be taken. However, the regulations do not preclude a school from removing a student or faculty respondent from the program or activity on an emergency basis during the grievance process.
A school may not violate any rights that are protected by the U.S. Constitution, General Education Provisions Act, Family Educational Rights and Privacy Act, Title VII of the Civil Rights Act of 1964, or any parental rights in the investigation or examination process. Furthermore, the rules have added prohibitions against retaliation. A school must not intimidate, threaten, coerce, or discriminate against any individual for making a complaint, testifying, assisting, participating, or refusing participation in the investigation. Complaints alleging retaliation are filed using the same grievance procedures as for sex discrimination. A code of conduct violation for making a materially false statement in bad faith does not constitute retaliation, but a determination about responsibility alone is insufficient evidence of a materially false statement in bad faith.
Immediate responsibilities for schools
As this law is effective on August 14, 2020, schools should take the following steps to comply as quickly as possible. Each school must designate, authorize, and refer to at least one employee to coordinate efforts to comply with its responsibilities under Title IX. Schools must notify all applicants for admission and employment, students, parents, guardians, employees, and all collective-bargaining unions with the Title IX Coordinator’s name, office address, e-mail address, and telephone number. These same people must be notified that the school does not discriminate on the basis of sex, that Title IX prohibits any sex discrimination including during employment and admission. The school must also prominently display the contact information of the Title IX Coordinator on its website and in each handbook or catalog that it makes available.
A school must adopt and publish grievance procedures that comply with the specific requirements in the new rule and publish the grievance procedure, how to report or file a complaint of sex discrimination or harassment, and how the school will respond.
Finally, this regulation sets the minimum protections against sexual harassment. A school can address harassing behavior that does not meet this definition of sexual harassment in its code of conduct. Even if a formal complaint is dismissed because the allegations do not rise to the definition of sexual harassment, the school is not precluded from addressing the misconduct under their own code of conduct. These regulations represent the Department’s interpretation of a school’s legally binding obligations, rather than best practices. Thus, the regulations provide a floor for code of conduct, not a ceiling.