New Title IX Sexual Harassment Regulations Overhaul Responsibilities for Schools

New Title IX Sexual Harassment Regulations Overhaul Responsibilities for Schools

Legal Sidebari

New Title IX Sexual Harassment Regulations
Overhaul Responsibilities for Schools
May 27, 2020
The Department of Education (ED) published new regulations implementing Title IX of the Education
Amendments of 1972 (Title IX) on May 19, 2020. Title IX prohibits discrimination on the basis of sex in
education programs or activities that receive federal financial assistance. While Title IX does not
specifically mention sexual harassment, courts and ED have determined that the response of a recipient
educational institution to incidents of sexual harassment can constitute discrimination based on sex. The
new Title IX regulations establish requirements that schools must follow in responding to sexual
harassment allegations, marking a major change from the expectations announced in previous guidance
documents, as well as departing in many ways from the provisions in the Notice of Proposed Rulemaking
(NPRM) that invited public comment on the rules.
The new regulations take effect on August 14, 2020, and apply to schools that receive federal financial
assistance, including postsecondary institutions and elementary and secondary schools. For many K-12
schools, the entity ultimately responsible for ensuring compliance is the “recipient” of financial
assistance—often the “local educational agency” to which the school belongs.
This Sidebar examines some of the major changes established by the Title IX regulations, highlighting
many of the most significant new requirements and noting where those obligations depart from prior ED
guidance and the NPRM. Given the rather complex background surrounding Title IX, including
nonbinding ED guidance documents, case law, and the NPRM, this Sidebar builds on previous CRS
reports and Sidebars that discuss those materials.
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Title IX Enforcement Background
Like many federal civil rights statutes, Title IX makes compliance with its nondiscrimination
requirements a condition for receiving federal financial assistance. ED’s interpretation of what Title IX
requires of schools responding to sexual harassment allegations has shifted considerably over the past
decade. As discussed more fully in other CRS products, before the new regulations, ED largely relied on a
series of guidance documents to articulate its interpretation of schools’ obligations. This guidance led to
changes in procedures schools used to handle sexual harassment allegations. In turn, some federal courts
ruled that certain procedures adopted to resolve sexual harassment allegations against students violated
constitutional due process requirements, requiring revisions to the procedures these schools employed.
New Title IX Regulations Regarding Sexual Harassment
Unlike its earlier guidance documents, the new Title IX regulations addressing schools’ responsibilities
when responding to sexual harassment allegations are binding requirements. According to ED, its prior
guidance documents caused confusion and failed to articulate how schools could satisfy Title IX’s
prohibition on discrimination while ensuring that the handling of sexual harassment allegations satisfied
due process requirements. Notably, the regulations specify that both a school’s treatment of someone who
complains of sexual harassment (complainant) and its treatment of the person formally accused of
misconduct (respondent) can violate Title IX. And the regulations define “education program or activity”
as including buildings owned or controlled by student organizations recognized by a postsecondary
institution (e.g., a school-recognized fraternity or sorority).
Definition: What Conduct Constitutes Sexual Harassment?
The regulations define sexual harassment as “conduct on the basis of sex” that meets one of three prongs.
The first prong is when an employee conditions the provision of an aid, benefit, or service on an
individual’s participation on unwelcome sexual conduct (quid pro quo harassment). Another prong is
when a student or employee commits sexual assault, dating violence, domestic violence, or stalking as
defined in the Clery Act and the Violence Against Women Act (VAWA).
Besides these two prongs, conduct is covered by the new regulations when a student or employee suffers
“[u]nwelcome 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.”
This standard draws from the Supreme Court’s decision in Davis v. Monroe County Board of Education,
which crafted a standard for damages liability against schools for student-to-student sexual harassment. It
seems a more exacting standard than used in prior ED guidance on student-to-student harassment, which
covered conduct based on sex that was “sufficiently serious” to limit or deny a student’s ability to benefit
from or participate in a school’s program. And it is also more difficult to meet than the standard used
under Title VII for employment discrimination, which only requires “severe or pervasive” harassment.

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Notice: When Must a School Respond to Sexual Harassment Allegations?
ED similarly draws on Davis (as well as the related Supreme Court decision Gebser v. Lago Vista
Independent School District) to define the circumstances in which a recipient must respond to sexual
harassment allegations. The Court in Gebser required, among other things, the recipient to have actual
knowledge of harassment for damages liability under Title IX. The Court rejected predicating liability on
theories of respondeat superior or constructive notice. The regulations similarly provide that recipients
with “actual knowledge” of harassment (or allegations of sexual harassment) must respond consistent
with the requirements discussed below. The regulations also note that “[i]mputation of knowledge based
solely on vicarious liability or constructive notice is insufficient.” This contrasts with previous ED
guidance, which provided that a school was sometimes automatically responsible for harassment by a
teacher or employee; otherwise, such as in cases of student-to-student harassment, a school had notice if a
responsible employee knew, or should have known, of the harassment.
The regulations provide, however, that the notice provision operates differently for K-12 schools than for
postsecondary institutions. At postsecondary institutions, only notice to the school’s Title IX coordinator
or any official with authority to institute corrective measures constitutes actual knowledge; this allows a
university to designate certain employees as confidential resources for students without a requirement that
they report the allegations to the school. But for K-12 schools, besides notice to the individuals mentioned
above, notice to any employee establishes actual knowledge. This departs from the NPRM’s proposal and
correlates with common state laws that require K-12 employees to report sexual abuse.
Response: What Actions Must a School Take Once It Has Notice?
The regulations provide that if a school has “actual knowledge” of sexual harassment in an education
program or activity, it must respond “promptly in a manner that is not deliberately indifferent.” The
regulations again draw upon Davis and Gebser in adopting this standard. In those cases, the Supreme
Court ruled that institutions would not be liable for damages under Title IX in cases of sexual harassment
unless their response was “deliberately indifferent.” The regulations also depart from the NPRM by
eliminating proposed “safe harbors” that would have precluded finding deliberate indifference if a school
followed certain procedures.
Initial Response to Allegations
Proving that a school responded with deliberate indifference can be difficult in a Title IX suit for
damages. ED’s adoption of this standard in the administrative context presumably narrows the situations
in which a school’s response could violate Title IX. However, the regulations also impose requirements
on schools that may go beyond what the deliberate indifference standard requires in the judicial context.
In particular, the regulations outline specific steps schools must take once they have notice of sexual
harassment, including offering “supportive measures” to a complainant. In addition, schools must explain
to complainants the process for filing an optional formal complaint.

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Grievance Procedures
When a formal complaint is filed (by a complainant, a school’s Title IX coordinator, or parent or
guardian), a school must investigate and follow specific grievance procedures. Written notice must be
given to the parties of the allegations with enough details to allow them to prepare a response before any
initial interview. A school must presume that the accused is not responsible for the alleged misconduct.
Throughout the grievance process, schools must ensure that the burdens of proof and evidence gathering
rest with the school, not the parties; provide equal opportunity to present witnesses and inculpatory and
exculpatory evidence; not restrict the parties from discussing the allegations or gathering evidence;
provide the parties with equal opportunity to have an advisor present; and provide parties with an equal
opportunity to review relevant evidence. Schools also must provide training for Title IX coordinators,
investigators, the individual (or individuals) rendering decisions in the proceeding (decisionmaker), and
anyone that facilitates informal resolution procedures. Training materials must be published on the
school’s website.
While schools must investigate allegations in formal complaints, they must dismiss complaints if the
alleged conduct (1) would not constitute sexual harassment under the definition articulated above; (2) did
not occur in the recipient’s educational program or activity; or (3) did not occur against a person in the
United States. The recipient must provide written notice to the parties when dismissing a case. Even so,
this dismissal notably does not preclude a school from applying its own code of conduct to a student.
Investigative Report
Schools must create an investigative report summarizing the relevant evidence. Before completion, they
must send copies of the evidence to each party. Parties then have 10 days to respond, and the investigator
will consider that response before completing the report. The parties must receive the completed report 10
days before a hearing or other determination of responsibility for their review and response.
Hearings
For postsecondary institutions, the grievance process must provide for a live hearing. Each party’s advisor
shall “directly, orally, and in real time” ask the other party and any witness relevant questions. Upon
request, this can occur in separate rooms with the aid of technology. Decisionmakers must determine
whether questions are relevant and may exclude nonrelevant questions. If a party does not have an
advisor, recipients must provide one free of charge to conduct cross-examination. In determining
responsibility, decisionmakers may not rely on any statement by a party or witness who does not submit
to cross-examination (explained in more detail here), although absence from a hearing may not support an
inference of responsibility.
Elementary and secondary schools need not conduct a hearing, but may choose to do so. Whether or not
they do, following delivery of the investigatory report, and before a determination of responsibility, the
decisionmaker(s) must afford each party a chance to submit written, relevant questions; provide parties
with the answers to those questions; and allow for follow-up.

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Determinations of Responsibility, Standard of Evidence, and Appeals
The person who determines responsibility may not be a school’s Title IX coordinator or the investigator
in the case, prohibiting schools from using the same person to fill multiple roles in a case. Schools may
apply the preponderance of the evidence (greater than fifty percent chance) or the more demanding clear
and convincing standard for determining responsibility, but must apply the same standard to formal
complaints against students as it does against employees, including faculty. (It bears mention that faculty
at some schools may have already engaged in collective bargaining agreements that adopt a “clear and
convincing standard” for employee disciplinary proceedings.) This provision departs from the NPRM,
which would have only permitted use of the preponderance standard if a school used the same standard in
other disciplinary proceedings that carried the same sanctions; and it contrasts with guidance issued under
the Obama Administration, which instructed schools to use a preponderance of the evidence standard to
adjudicate allegations, rather than giving schools an option to employ a more stringent standard.
Schools must allow for appeals of decisions (and dismissals of a formal complaint) to both parties in
cases of procedural irregularity, new evidence, or a conflict of interest or bias by a Title IX coordinator,
investigator, or decisionmaker(s). This provision contrasts with the NPRM, which did not require schools
to offer appeals. Schools may also offer appeals on different grounds to both parties equally. The
decisionmaker(s) in an appeal may not be the original decisionmaker(s), investigator(s), or Title IX
coordinator. The regulations do not specify which sanctions that schools must apply in cases of
misconduct.
Informal Resolution
In cases of student-to-student harassment in which a formal complaint was filed, schools may facilitate
informal resolution procedures such as mediation that lack the formal procedures described above.
Schools must first obtain the parties’ voluntary, written consent to do so, and must permit parties, at any
time before resolution, to withdraw and resume the formal grievance procedures. This contrasts with
earlier ED guidance that cautioned against the use of mediation to resolve complaints.
Retaliation
Finally, the regulations prohibit retaliating against individuals for participating (or not participating) in
Title IX procedures. Charging someone for a code of conduct violation that does not involve sexual
harassment, but stems from the same circumstances in a complaint, can constitute retaliation.
Conclusion
The responsibilities of schools in responding to allegations of sexual harassment under Title IX have
shifted significantly in recent administrations. ED’s regulations will impose new obligations that depart
from the agency’s previous requirements; and the regulations are already being challenged in federal
court. Given their promulgation after a notice and comment period, agency alteration in the future will
require a new round of rulemaking procedures, accompanied by a reasonable explanation for any changes.
If Congress is dissatisfied with the regulation, options include amending Title IX to provide a definition
of sexual harassment or delineating more specifically a school’s obligations under the statute.
Alternatively, pursuant to the Congressional Review Act, Congress could pass a joint resolution of
disapproval within the time limits that statute requires. Finally, Congress may also seek to limit

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enforcement of those aspects of the regulation it might disagree with through appropriations riders,
though these provisions generally expire at the end of the relevant appropriations cycle.

Author Information

Jared P. Cole

Legislative Attorney

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