Title IX: Meeting the New Federal Mandates

By Attorney Bob Butler, WASB

The U.S. Department of Education recently issued new Title IX regulations regarding sexual harassment in public schools. The regulations require specific training for each Title IX coordinator as well as for the individuals who are assigned designated roles in the process that the school adopts for resolving formal complaints of Title IX sexual harassment (i.e., investigators, decision-makers and facilitators of informal resolutions). Every school district will also need to review and modify its various policies and procedures in connection with the implementation of the new Title IX regulations. The following FAQ provides general information regarding the new Title IX regulations that every school leader should be aware of.

Please see Figure One: A Title IX flowchart created by Ellen Krueger and Melissa Thiel Collar from the Green Bay Area Public School District. This is an example of how a Title IX complaint is processed there, following its policies and procedures. AWSA members should consult their own Title IX policies and procedures to ensure compliance. We are grateful to Ellen and Melissa for sharing their work with AWSA's members.

The U.S. Department of Education recently issued new Title IX regulations regarding sexual harassment in public schools. The regulations went into effect on August 14, 2020. The regulations require specific training for each Title IX coordinator as well as for the individuals who are assigned designated roles in the process that the school adopts for resolving formal complaints of Title IX sexual harassment (i.e., investigators, decision-makers and facilitators of informal resolutions).

Every school district will also need to review and modify its various policies and procedures in connection with the implementation of the new Title IX regulations. The following FAQ provides general information regarding the new Title IX regulations. As noted in the FAQ below, there will also be a significant training and staff development component to address in complying with the new regulations. The WASB teamed up with the law firm Boardman & Clark and held a complimentary webinar on July 8 about the new Title IX regulations:

The WASB and Boardman & Clark have also created Title IX training modules to help school districts meet the law’s staff training requirements. Visit the WASB Title IX Training web page for details on the modules and how to purchase the training.

The following are FAQ that have arisen regarding the new Title IX regulations.

1. What is the primary focus of the new Title IX regulations in the K-12 context?

The primary focus of the regulations concerns the overall institutional response by school districts to alleged or confirmed incidents of sexual harassment (including sexual assault and other forms of sexual violence) that may occur in the district’s education programs and activities within the United States. For purposes of a district’s Title IX obligations relating to sexual harassment, an “education program or activity” includes locations, events, or circumstances over which the school district exercised substantial control over both the respondent (i.e., the alleged perpetrator of the conduct) and the context in which the sexual harassment occurred. Some of the final regulations, such as requirements for school districts to give certain notices, to identify a Title IX Coordinator, and to prohibit retaliation, relate to all forms of prohibited sex discrimination (i.e., not exclusively to sexual harassment).

Title IX applies to public school districts in this context because school districts are recipients of federal funds and because sexual harassment within education programs and activities is recognized as one form of unlawful discrimination that is based on sex. The new regulations apply to incidents and allegations of sexual harassment regardless of whether a student or an employee is the complainant (i.e., an alleged victim) or the respondent (i.e., the individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment). Refer to Question 5, below, for information on aspects of Title IX that are not addressed by the new regulations.

2. When did the new Title IX regulations take effect?

The regulations took effect on August 14, 2020.

3. What are some examples of the mandates contained in the regulations and the adjustments that school districts will have to make to their local policies and procedures?

Some examples of the changes that need to be addressed by school districts include the following:

A school district’s obligations to respond to incidents or allegations of sexual harassment under the Title IX regulations are triggered any time the district has actual knowledge of the relevant circumstances. Under the regulations, “actual knowledge” means notice of sexual harassment or allegations of sexual harassment to the district’s Title IX Coordinator, to any school district official who has authority to institute corrective measures on behalf of the district, or to any employee of an elementary and secondary school. In all cases, a school district’s general obligation is to respond promptly and in a manner that is not clearly unreasonable in light of the known circumstances (i.e., in a manner that is “not deliberately indifferent”).
The regulations create a definition of “sexual harassment” that is specific to Title IX. (See Question 4, below.)
School districts are required to create and implement a formal Title IX grievance process to address formal complaints of sexual harassment. The grievance process needs to incorporate numerous procedures and standards that are specified in the regulations. The regulatory requirements for the grievance process (which, as defined primarily in section 106.45, are a topic unto themselves) differ substantially from most districts’ existing discrimination complaint procedures and from most districts’ pre-disciplinary procedures (whether for students or for employees).
School districts must develop and implement response protocols that differentiate between formal complaints of sexual harassment and reports of possible sexual harassment of which the district has actual knowledge. Only formal complaints trigger the obligation to use the formal Title IX investigation/grievance process. However, prior to and after the filing of a formal complaint as well as in the absence of a formal complaint, school districts still must respond to reports of possible sexual harassment by, for example, offering and providing “supportive measures” and taking other steps. “Supportive measures” are defined in section 106.30 of the amended regulations. Generally, “supportive measures” are non-disciplinary, non-punitive individualized services offered as appropriate and without fee or charge to the complainant or the respondent that are designed to restore or preserve equal access to the school district’s education program or activity without unreasonably burdening the other party.
In connection with formal complaints, the regulations significantly restrict the ability of school districts to impose disciplinary sanctions or take other adverse actions against alleged perpetrators of sexual harassment until after an investigation occurs and a determination of responsibility is made at the conclusion of the grievance process. However, the regulations do make allowances for the emergency removal of a student from a program or activity in limited circumstances and also generally allow a school district to place an employee on a non-disciplinary administrative leave.
The regulations define several independent roles within the formal Title IX grievance process that cannot be performed by the same person. These roles include the investigator, the decision-maker, and the person who responds to an appeal. Some districts may also define a role for individuals who are trained to facilitate an informal resolution process, if the parties voluntarily consent to participating in such a process in appropriate cases.
The regulations impose various training mandates.
The regulations impose new notice requirements.
The regulations impose new record keeping obligations.

4. How do the new Title IX regulations define sexual harassment?

The amended federal regulations establish a new definition of sexual harassment that is specific to Title IX. Under the regulations, sexual harassment means conduct on the basis of sex that satisfies one or more of the following:

A school district employee conditioning the provision of an aid, benefit, or service of the district on an individual’s participation in unwelcome sexual conduct;
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 district’s education program or activity; OR
“Sexual assault,” “dating violence,” “domestic violence,” or “stalking;” as each of those terms is defined by reference to specific federal statutes.

It is significant, for example, that under the second prong of this new definition, conduct must be “… severe, pervasive, and objectively offensive … ” in order to constitute sexual harassment under Title IX.

The definition of sexual harassment under the new regulations is different from (and generally narrower than) the definition of the term that applies under Title VII (which is another federal law that prohibits sexual harassment in employment). Similarly, through student codes of conduct, employee handbooks, and other local policies, school districts generally prohibit and assert an interest in addressing a substantially broader range of undesirable conduct than just the conduct that falls within the comparatively narrow Title IX definition of sexual harassment. As a result, a conclusion that sexual harassment has not occurred under Title IX will not fully answer the question of whether an employee, student, or other respondent has engaged in inappropriate conduct. It will be a significant challenge for school officials to harmonize not only the different substantive standards that might be applied to a given allegation of misconduct, but also the different procedural rights and requirements that may need to be satisfied in each specific case.

5. What aspects of Title IX were not addressed in the new Title IX regulations?

When the claims in question do not involve allegations of sexual harassment, the new Title IX regulations:

Do not directly modify the application of Title IX to claims of a lack of equal opportunities within a school district’s programs and activities. For example, the new regulations do not substantively modify school districts’ obligations relating to claims that a school district is offering inferior participation opportunities, funding, or facilities in its athletic programs based on the sex of the participants.
Do not directly address the application of Title IX to claims of discrimination based on a person’s transgender status or gender non-conformity. Specifically, the new regulations do not materially add to the existing legal landscape for addressing issues such as a transgender student’s participation in sex-segregated sports or a transgender student’s access to sex-segregated restrooms or locker rooms. At the same time, a student or an employee who is transgender could certainly be a “complainant” under the new regulations based on a concern that the individual is being sexually harassed in a school-related setting.

Bob Butler has been a WASB staff counsel since 1990. He is also, along with attorney Barry Forbes, the Association’s co-associate executive director. Bob can be contacted at: [email protected] and 1-877-705-4422 (phone). Bob would like to thank Dan Mallin, WASB Legal and Policy Services Counsel for his work in creating the background information set forth above.

The above information is a product of the Wisconsin Association of School Boards, Inc. This information is intended to provide authoritative general information, with commentary, as a service to WASB and AWSA members. The materials and information provided in this article are subject to change without notice and should not be construed as legal advice. If needed, legal advice regarding any topic, issue, situation or incident should be obtained from the school district's legal counsel. You may also direct your Level I legal questions to AWSA’s retained legal counsel, Malina Piontek, at 608-497-3037 or [email protected].