“We are making sure our younger students, who are often overlooked in this topic, are no more forgotten,” Education Secretary Betsy DeVos stated after the Trump administration announced new Title IX regulations this past Wednesday. Specifically, the new regulations explain when and how K-12 schools must take action and respond to students’ reports of sexual assault and harassment under Title IX, the federal law that prohibits sex discrimination. Interestingly, the new rules mark the first time that the U.S. Department of Education has instituted regulations under Title IX detailing what schools are required to do when dealing with sexual assault cases involving their students.
The new rules replace an Obama administration civil rights directive that Secretary DeVos revoked in September 2017. The new regulation shifts the threshold from a “preponderance of evidence” standard to a “clear and convincing evidence” standard for officials to determine if an assault claim necessitates a response. The “clear and convincing evidence” standard is a more elevated legal criterion that must be met in order to substantiate accusations of sexual harassment or assault. Most discussions surrounding the new rules have focused mainly on how the changes will affect college campuses and universities across the country. It is important to note, however, that the changes will also significantly affect K-12 schools. Some of the key provisions applying to K-12 schools include:
- Schools are required to use a narrower definition of sexual harassment in the new rules. Under the new regulations, sexual harassment is unwelcome conduct that “a reasonable person” would consider “so severe, pervasive, and objectively offensive that it effectively denies a person equal access” to an education.
- Schools are required to respond when they have “actual knowledge” (defined as notice to the Title IX Coordinator or an official who has authority to institute corrective measures on behalf of the school) of a complaint of sexual harassment (any report to any elementary/secondary school employee). Schools must have accessible options for reporting sexual harassment, verbally or in writing, including by email or by telephone.
- Schools must respond when harassment occurs “in the school’s education program or activity.” The new definition of “program or activity” has been expanded to include “locations, events, or circumstances over which the school exercised substantial control over both the respondent and the context in which the sexual harassment occurs” (e.g. campus, field trips, athletic events, conferences, etc.).
- The person who investigates a sexual assault case cannot be the same person who decides whether the accused student is responsible. Schools may have to hire/train additional staff to comply with this directive.
- Parents or guardians of K-12 students are able to file complaints on behalf of their children. Parental notification must be given in writing with regards to complaints against their children. An accused student must be given at least 10 days to respond to the complaint. If the school decides to punish a student for a sexual assault allegation, it must inform the victim in writing.
- Schools must provide “supportive measures” to students, with or without a formal complaint, which may include counseling or changing class schedules to avoid sharing a classroom with the accused student.
This new Title IX guidance, also coined “the Final Rule,” will carry the force and effect of law as of August 14, 2020—giving schools some time to prepare for new compliance standards and activities and time to train staff on the various changes. As always, if you have any questions on this Title IX guidance, please do not hesitate to reach out to the School Law Group at Stock and Leader.