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Deep Dive
Title IX regulations impose new requirements on K-12 districts
A former Illinois executive inspector general writes that K-12 school
districts will need to make substantial changes to how they address
sexual harassment.
Maggie Hickey, Anthony-Ray Sepúlveda and Mariam Chamilova
June 4, 2020
Maggie Hickey is a former Illinois inspector general and a partner at
Schiff Hardin LLP whose team worked with Chicago Public Schools to
address sexual misconduct against students. At Maggie’s recommendation,
CPS created an Office of Student Protections and Title IX, which
investigates allegations of student-on-student sexual misconduct,
ensures victims of sexual misconduct receive support services, and
collects and reports data regarding sexual misconduct. Anthony-Ray
Sepúlveda and Mariam Chamilova are associates at Schiff Hardin.
On May 6, the U.S. Department of Education released new Title IX
regulations that establish how education programs that receive federal
funding must respond to sex discrimination, including sexual
harassment. A lot has been written about how the new rules apply in
college classrooms, parties and dormitories, but the new regulations
also apply to elementary school playgrounds and high school sports
programs. In fact, the regulations detail specific minimum
responsibilities and requirements that apply to kindergarten through
12th grade.
Although some of the requirements are not new, this is the first time
many requirements are explicitly stated in the regulations, so they may
seem new to K-12 districts. As a result, many K-12 districts will need
to make substantial changes to how they address sexual harassment.
As districts consider timelines to reopen after COVID-19, they should
also focus on complying with these requirements, which include staffing
positions, knowing the district’s scope of responsibility, creating
policies, responding to and investigating complaints, and training on
all these topics.
With three months until the new requirements take effect, schools should do the following:
Designate qualified personnel
Before the changes, districts were already required to have a “Title IX
Coordinator” lead compliance efforts. Now the regulations require
districts to designate additional positions, including investigators
and decision-makers. The regulations specify decision-makers cannot be
the same person as the Title IX Coordinator or an investigator.
Prepare for broader response obligations
When a district has actual knowledge of sexual harassment, the new
regulations prohibit districts from responding in a manner that is
“clearly unreasonable in light of the known circumstances.” A K-12
district has “actual knowledge” when any employee has notice of sexual
harassment or allegations of sexual harassment (unless that employee is
the accused).
While many states already have mandatory reporting statutes for
districts, the new Title IX regulations essentially make reporting a
federal requirement. As a result, districts should consider training
all employees even though the regulations do not explicitly require it.
Once a district’s response obligations are triggered, the Title IX
Coordinator must promptly contact the complainant to discuss supportive
measures, consider the complainant’s wishes regarding supportive
measures, and explain the process for filing a formal complaint.
The new regulations also require districts to offer supportive measures
— including counseling, contact restrictions, and modification of class
schedules — to complainants. Additionally, districts must follow a
grievance process before imposing any discipline or non-supportive
measures against the accused. But districts may place accused
non-student employees on administrative leave while a grievance process
is pending.
The regulations also expressly recognize the legal rights of parents
and guardians to act on behalf of students in Title IX matters.
Therefore, students’ parents or guardians may make decisions regarding
appropriate supportive measures or whether to file or withdraw a formal
complaint.
Know the district’s new scope of responsibility
The new regulations specify the district’s responsibilities and when
districts must dismiss formal complaints. After receiving a formal
complaint, districts must conduct a formal investigation or, in limited
circumstances, offer an informal resolution process.
Likewise, districts must dismiss a formal complaint if 1) the conduct
would not constitute sexual harassment, under the new definition, or 2)
if the conduct did not occur in a district’s function or 3) in the
United States. If the district dismisses the formal complaint, it may
still take action under its code of conduct.
The district may dismiss a complaint if 1) the complainant notifies the
Title IX Coordinator, in writing, that the complainant would like to
withdraw, 2) if the accused is no longer enrolled or employed by the
district, or 3) if the specific circumstances prevent the district from
gathering sufficient evidence to determine responsibility.
The new regulations list factors that districts should consider in
making the decision, including whether the accused might pose an
ongoing risk to the district’s community. Nonetheless, it is unclear
whether or how the new regulations address K-12 personnel who commit
sexual harassment and may attempt to avoid consequences by changing
districts.
Know the new investigative requirements
The new regulations codify additional investigative requirements. For
example, before the completion of the investigative report, the
district must send evidence to each party, and the parties must have at
least 10 days to submit a written response.
Next, the investigator must create an investigative report and send the
report to each party for review and written response, at least 10 days
before the hearing or before the district’s determination regarding
responsibility.
K-12 school districts may, but need not, hold live hearings. Even
without a live hearing, however, the district’s decision-maker must
allow each party to submit written questions, provide each party with
the answers, and allow for additional follow-up questions before
determining responsibility.
The new regulations also specify the district has the burden of proof.
Further, while districts may now choose between the “preponderance of
the evidence” or the “clear and convincing evidence” standard, the
regulations specify districts must select the standard in advance and
apply the same standard to all formal complaints, for both accused
students and employees.
Prepare for the new training requirements
Before the changes, Title IX already required districts to train
certain personnel on the law. The new regulations, however, identify
new training topics for certain designated personnel, including on the
regulation’s new definition of sexual harassment and how to serve
impartially.
Moreover, districts must now train decision-makers on how to conduct
live hearings — including what questions and evidence are relevant —
and train investigators on how to create an investigative report that
fairly summarizes relevant evidence. Districts must also make all
training materials publicly available.
Overall, the new regulations increase the obligations K-12 districts
have for addressing sexual harassment. The stakes are high: The
Department of Education can require schools to prove their compliance
with Title IX and withhold federal financial assistance for
non-compliance, regardless of whether they have made any finding of
sexual harassment.
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