Jacqueline Brown
Associate Editor
Loyola University Chicago School of Law, JD 2022
The new Title IX regulations that were introduced by the Department of Education (the Department) in May are officially in effect and require school districts to implement multiple changes in their Title IX compliance practices. Title IX explains that educational programs and activities receiving federal funding from the Department must not act in a discriminatory manner on the basis of sex. These new regulations extend many new protections against sexual harassment, and aim to protect the rights of students, mainly their right to due process. However, in light of the COVID-19 pandemic, schools are challenged with implementing these new regulations while navigating the obstacles brought by the virus.
What is Title IX?
Title IX is a federal law that prohibits discrimination based on sex in education programs or activities that receive federal financial assistance. Title IX was originally a civil rights law passed as part of the Education Amendments of 1972. This regulation encompasses areas like Recruitment, Athletics, Sex-Based Harassment, Treatment of Pregnant & Parenting Students, Discipline, Single-sex education, Employment and Retaliation. These new regulations are about three years in the making considering it was in 2017 when the new Administration took over and amended the guidance enacted by the prior Administration. This ruling was the first full rulemaking on a major Title IX issue since 1975, and the only one on the topic of sexual harassment.
There are two important decisions from the Supreme Court that set forth the liability standards for lawsuits regarding money damages under Title IX. These two cases are, Gebser v. Lago Vista Independent School District (1998) and Davis v. Monroe County Board of Education (1999), and both contain a number of principles and terms that have been incorporated into the final rule. In these decisions the court held that any education program that is receiving federal funding can be held liable for sexual harassment of students by their teachers or peers, but only if the school had “actual knowledge” of the misconduct and the school responded with “deliberate indifference.” Additionally, the court decided that misconduct must be “so severe, persistent, and objectively offensive that it effectively bars the victim’s access to educational opportunity.”
What do these new regulations require?
The regulations implemented in August of 2020 require a complete renovation of how schools currently handle allegations of sexual assault and harassment. These changes transform how schools are responsibilities in addressing these types of claims. In regards to sexual harassment claims, Title IX now requires schools to comply with many more procedural requirements when investigating and adjudicating complaints than what was previously necessary. Specifically, the new regulations require specific timeframes and conditions for responding to complaints, and add a requirement to notify all community members (including students, parents, employees) of the new school specific policies. It is recommended that school administrators educate their teams in the new policies and where to find the procedures they work with.
Moreover, the new Title IX regulations require schools to include some additions to their Title IX policies. For example, a ‘Notice of Nondiscrimination’, stating the institution does not discriminate based on sex in any of its practices, must be included in its Title IX policies. These practices include the education programs and activities offered by the school, as well as the admission of students, and in its employment practices. There also changes to each institutions Title IX Sexual Harassment policy, now requiring specific contact information of the Title IX Coordinator to be included in the policies.
The difficulties of implementing these regulations during COVID-19
Even in the midst of uncertainty around the fall semester and navigating how to safely provide students an education, institutions still had to implement these regulations before the August 14th deadline to ensure compliance. When the regulations were first announced in May, many administrators nationwide considered whether even needing to worry about these rules, figuring advocate groups would sue to delay or overturn the new regulations, especially considering the task of schools needing to navigate the obstacles brought by COVID-19. However, the efforts of multiple states and advocacy organizations filing lawsuits to delay the effective date of the new regulations have not been successful. In one lawsuit brought by the school boards for the state of New York and New York City, a judge refused to grant a preliminary injunction which would delay the rule implementation date. In addition to the suit brought in New York, seventeen other states await another judge’s decision on their request for preliminary injunction.
Advocates are not hopeful for the next decision, as Courts tend to give significant deference to federal agencies in this kind of rulemaking. Further, there is no precedent suggesting that a lawsuit will lead to any delay in the rules at this time. Advocated recommend schools take proper action or attend trainings to make sure they are not at risk for noncompliance and the resulting monetary penalties.