Sexual Harassment Under the New Title IX Regulations

Over the last few weeks, multiple school district clients have received sexual harassment complaints under the new Title IX regulations. We know school districts have more new legal rules and regulations to follow than ever before, and wanted to take this opportunity to remind school districts of their obligations under the new Title IX regulations. To assist school districts in reviewing their compliance with the new Title IX regulations, we are reissuing our blog post, which was previously published on July 15, 2020. If your school district has not yet adopted a new policy or trained the necessary staff members regarding the new sexual harassment regulations, your school district should consider consulting with legal counsel.

Title IX prohibits discrimination on the basis of sex in any education program or activity receiving Federal financial assistance, including public school districts. The final regulations make significant changes to the grievance process that will need to be followed when responding to Title IX complaints, including, but not limited to the following:

The prior regulations required school districts to adopt grievance procedures that provided for the prompt and equitable resolution of student and employee complaints. The final regulations now contain a new provision requiring a grievance process that:

  • Follows the grievance process before the imposition of any discipline or other actions, aside from supportive measures for the complainant;
  • Requires an objective evaluation of all relevant evidence;
  • Requires that any individual identified as the Title IX Coordinator, investigator, decision-maker(s), or identified to facilitate an informal resolution process, not have a conflict of interest or bias;
  • Includes a presumption that the person accused of discrimination or harassment is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process;
  • Includes reasonably prompt time frames for conclusion of the grievance process;
  • Describes or lists the range of possible disciplinary sanctions or remedies;
  • States whether the school district will be using the preponderance of the evidence standard or the clear and convincing evidence standard;
  • Includes the procedures and permissible bases for the complainant and respondent to appeal;
  • Describes the range of supportive measures available to complainants and respondents; and
  • Does not require, allow, rely upon, or otherwise use questions of evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege unless the privilege has been waived.

This period becomes especially difficult to plan given the upcoming Thanksgiving Holiday when many school districts shut down early in the week.

The final regulations now provide that if the conduct alleged in the complaint would not constitute sexual harassment even if proved, did not occur in the school district’s education program or activity, or did not occur against a person in the United States, then the school district must dismiss the formal complaint. However, the dismissal does not preclude action under another provision of the school district’s code of conduct.

The prior regulations did not contain a specific investigative procedure. Under the final regulations, when investigating a formal complaint, the school district now must:

  • Ensure that the burden of proof and the burden of gathering evidence sufficient to reach a determination rests on the school district and not on the parties;
  • Provide an equal opportunity for the parties to present witnesses;
  • Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence;
  • Provide the parties with the same opportunities to have others present during any grievance proceeding;
  • Provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate;
  • Provide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint;
  • Prior to completion of the investigative report, the school district must send to each party and the party’s advisor, if any, the evidence subject to inspection and review, and the parties must have at least 10 days to submit a written response, which the investigator will consider prior to completion of the investigative report; and
  • Create an investigative report that fairly summarizes relevant evidence and, at least 10 days prior to a hearing or other time of determination regarding responsibility, send to each party and the party’s advisor, if any, the investigative report for their review and written response.

The prior regulations did not contain a hearing procedure. The final regulations create a new hearing procedure for postsecondary institutions. For elementary and secondary schools (unlike postsecondary institutions), the grievance process may, but need not, provide for a hearing. With or without a hearing, after the school district has sent the investigative report to the parties and before reaching a determination regarding responsibility, the decision-maker(s) must afford each party the opportunity:

  • To submit written, relevant questions that a party wants asked of any party or witness;
  • Provide each party with the answers; and
  • Allow for additional, limited follow-up questions from each party.

The prior regulations did not contain requirements for the content of the school district’s final determination regarding a Title IX complaint. The final regulations now require that the decision-maker(s), who cannot be the same person(s) as the Title IX Coordinator or the investigator, issue a written determination regarding responsibility that must include:

  • Identification of the allegations potentially constituting sexual harassment;
  • A description of the procedural steps taken from the school district of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
  • Conclusions regarding the application of the school district’s code of conduct to the facts;
  • A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, and disciplinary sanctions the school district imposes on the respondent, and whether remedies designed to restore or provide equal access to the education program or activity will be provided to the complainant;
  • The procedures and permissible bases for the complainant and respondent to appeal.

The prior regulations did not contain a right to appeal. Under the final regulations, a school district now must offer both parties an opportunity to appeal to decision-maker(s) who are not the decision-maker(s) that made the determination, the investigator, or the Title IX Coordinator, on the following bases:

  • Procedural irregularity that affected the outcome of the matter;
  • New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; and
  • The Title IX Coordinator, investigator, or decision-maker(s) had a conflict of interest or bias that affected the outcome of the matter.

The prior regulations did not contain specific training requirements. The final regulations now require Title IX Coordinators, investigators, decision-maker(s), and any individual who facilitates in the informal resolution process, to receive specific training.

The numerous changes to the Title IX regulations will require school districts to make revisions to their Title IX policies, as well as provide the necessary training to their Title IX Coordinators, investigators, and decision-maker(s). School districts also may consider providing further training to their school staff to ensure their staff members respond appropriately if they are provided with notice of a Title IX complaint. As a result, school district should consider contacting their policy provider or legal counsel to review their current policies and provide the necessary revisions. Additionally, school districts should consider how and when they will provide the training required by the final regulations.

Jacqueline Brickman may be reached at