Objectively Subjective? What the Newly Published Title IX Q&A Tell us About Sexual Harassment and the Recently Emphasized Reasonable Person Standard

Maddie Xilas

Associate Editor

Loyola University Chicago School of Law, JD 2023

In May of last year, the U.S. Department of Education’s Office for Civil Rights (OCR) released a Final Rule, amending the regulations implementing Title IX of the Education Amendments of 1972. With this guidance came a plethora of changes to how recipients of Federal financial assistance covered by Title IX must respond to allegations of sex-based discrimination. Amongst the most notable changes to these regulations, was the clarification that a reasonable person standard applies to certain elements which are, at times, necessary to prove sexual harassment under Title IX.

Sexual harassment under Title IX: what is it and how did it change in 2020?

Under Title IX, sexual harassment is conduct on the basis of sex that satisfies one, or more, of the following three prongs: (1) An employee of the recipient [of Federal financial aid] conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct; (2) Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or (3) “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).

As is made clear by the 2020 regulations, application of the reasonable person standard, though not relevant to prong one or three, is required for each element of the second prong. Notably, the definition of sexual harassment under prong two, which is derived from the 1999 Supreme Court’s opinion in Davis v. Monroe County Board of Education, has long been used to evaluate when sex-based conduct becomes actionable sexual harassment under Title IX. Thus, while no substantive changes to the definition of sexual harassment under prong two were made in the 2020 amended regulations, OCR did revise its regulations to expressly enumerate that each element (severe, pervasive, offensive, and denial of equal access) should be analyzed from the perspective of a reasonable person in the complainant’s position.

July 2021 Q&A

Given that, in its 2020 regulations, OCR itself acknowledged that prong two is considered to be, at least among some commentators, the “most controversial” of the three types of sexual harassment, it is no surprise that OCR took time to discuss the second prong in its recently released July 2021 Title IX Question and Answer.

In keeping with its apparent commitment to discussing the more controversial elements of the 2020 regulations, the July 2021 Q&A, in part, placed its focus on addressing how the objective standard should be applied to the requirement that actionable conduct must, in essence, deny a complainant’s right to equal access. A requirement which commentators have previously deemed, “confusing”, “stringent”, and “unduly restrictive”.

Unfortunately, the Q&A likely did not provide the total clarity that students, academics, and attorneys are searching for. No doubt, many critics were still left questioning how this newly cemented reasonable person standard, as applied to the denial of equal access element, does not blatantly encourage school officials to inappropriately judge how a complainant has reacted to sexual harassment. However, the Q&A did take steps to recognize the flexibility of the reasonable person standard. The Q&A reemphasized that school officials are required to ground themselves in the experiences of the complainants when analyzing whether a complainant has been effectively denied equal access to their educational program or activity. Additionally, the Q&A reemphasized that effective denial of equal access to educational opportunities will manifest differently depending on the age of the complainant and the complainant’s stage of development. The Q&A also reminded readers that no concrete injury must occur to satisfy the element.

Ultimately, while it remains true that some of the fundamental questions regarding the application of the reasonable person standard were not addressed in the Q&A, efforts were made, by OCR, to emphasize the flexibility of the reasonable person standard, at least with regards to the denial of equal access element. So, while the Q&A may not provide all of the answers, it is a solid indicator that OCR is committed to a flexible standard which holistically considers the positioning of the complainant, while also maintaining an objective component in the hopes of avoiding any first amendment implications.