The law requires school officials to take immediate action to protect you when you report sexual harassment or violence, to prevent it from continuing & ensure no retaliation happens after you speak out.
The law makes sure that a school investigation into sexual harassment & violence is prompt & fair to both parties by providing equal rights throughout the process.
The law requires schools to tell you & your parents about its policies against sexual harassment & violence during school or related activities.
The law required that schools support students who report sexual harassment & violence, to ensure they can stay in school & access the support resources they need, free of charge.
The law makes sure you can speak privately to someone in school about any concerns you have regarding sexual abuse, violence or harassment & that any report stays private unless there’s an ongoing risk.
The law makes sure you can report sexual harassment & violence to school officials or police by telling you who to file a complaint with, where to do it, & how to do it to make sure you receive justice.
The New Title IX Rules from the Department of Education
1. Definition of Sexual Harassment
The 2020 Rules have redefined sexual harassment, limiting what is considered ‘harassment’ to mean only behavior that falls under these types:
Quid pro quo sexual harassment (meaning that someone asks for some type of sexual activity in exchange for them doing something for the victim: helping them on a test, gifts, etc.)
Hostile environment: unwelcome behavior determined by a reasonable person to be so severe, pervasive and objectionably offensive that it effectively denies a person equal access to an educational program or activity
Sexual assault, dating/domestic violence, or stalking (uses Violence Against Women/Clery Act definitions)These definitions will limit and restrict when a sexual harassment policy violation is found.
2. Faculty/Staff Mandated Reporters
K-12 schools must respond when ANY employee has notice of sexual harassment, and schools must train ALL employees about Title IX, how to recognize potential claims, and how to report it internally to the Title IX Coordinator.
3. Jurisdiction for Title IX
The 2020 Rules clarify that a school must dismiss actions that do not occur in an education program or activity under Title IX (meaning if you were assaulted by a classmate over the weekend, the school cannot investigate the claim at school and you would have to go elsewhere – police, direct service agency, hospital) The person reporting harassment must also be currently enrolled or attempting to enroll in an educational program or activity for the complaint to be accepted, meaning that an individual who had transferred out of the district and/or graduated from the district could not file a complaint. Previously, the school was required to look into all complaints. Further, the New Rules state that these matters MUST be dismissed if they:
Would not fit within the definition of sexual harassment
Did not occur in an education program or activity of the school
Did not occur in the United States
In addition, the New Rules state that a school MAY dismiss complaints if the:
The person reporting the harassment withdraws formal complaint in writing
The alleged perpetrator is no longer enrolled as a student or employed by school
Circumstances prevent the school from gathering evidence that would be sufficient to reach a determination.
It should be noted that the 2020 Rules do not address if an assault has happened off campus, but ongoing rumors, sharing of videos or images, and other harassment as a result of the assault must be investigated by the school.
4. Requirement of Formal Complaint
Schools are required to investigate formal complaints received in writing from the person reporting. The Title IX Coordinator may file and sign a formal complaint. However, the 2020 Rules note that if the person reporting does not file a formal complaint, the wishes of the person reporting should be respected unless the Title IX Coordinator decides to initiate the complaint and it is “clearly not unreasonable in light of the known circumstances.” The 2020 Rules include no guidance on what a Title IX Coordinator should consider in a determination about bringing a complaint.
5. Mandatory Obligations
The obligation imposed on a school is that it cannot be deliberately indifferent to a report of sexual harassment. Mandatory obligations include offering “supportive measures” to a complainant that must be non-punitive, non-disciplinary, and not unreasonably burdensome on the other party. The measures must be designed to provide both parties with equal access to their education, protect safety, and deter sexual harassment. A school cannot take any measure that could be construed as disciplinary against a respondent at this stage. The 2020 Rule indicates supportive measures are available to an alleged perpetrator after a formal complaint is filed. Many of the supporting efforts that schools provided in the past would not be available in the early stages of the report, potentially allowing for continued harassment.
6. Grievance Process
The 2020 Rule identified specific requirements that must be included in the sexual harassment grievance process. Some of these changes are:
Process must be fair, equitable, without bias or conflict of interest, not reliant upon stereotypes
Advisors for the parties are permitted, and in some instances, must be provided to the parties
Separate decision-makers must be involved in process, meaning that investigator must be a separate person from the ultimate decision-maker who determines if a policy violation has happened
Either a ‘preponderance of the evidence’ or ‘clear and convincing’ standard can be used to make determinations and the school can decide which they would like to use. ‘Preponderance’ is not as difficult to prove as ‘clear and convincing.’ It should also be noted that in the case of sexual harassment in the workplace, a ‘preponderance’ standard is normally used.
The burden is on the school to gather evidence to support a finding
Process cannot violate any constitutional protections of any party – First, Fifth and Fourteenth Amendments
All information gathered in the investigation process must be shared with both parties before a decision is issued
Appeal allowed for both parties
The 2020 Rules no longer require schools to conclude their investigations within a 60-day period. This guidance may allow schools to unnecessarily delay investigations.
8. Hearing Panel
The 2020 Rule permits, but does not require K-12 schools to hold a hearing to adjudicate the matter after the initial investigation is completed. A hearing would allow for cross-examination of parties and witnesses by the advisor to a party. If one party has an advisor and the other does not, then the school must provide a trained advisor for the other party for its hearing. The hearing could be run by an officer or a panel. Specific training is required for all panelists/officers. In the absence of a live hearing, the parties will be permitted to submit questions that will be asked of other parties and witnesses by the decision-maker before a final decision is issued. Because of the substantial burden of instituting a hearing process, it is unlikely that most K-12 schools will voluntarily adopt this model.
9. Informal Resolution
Informal resolution is permitted after the filing of a formal complaint, review of the informal process by the parties, and agreement to participate in the informal process. Either party can leave the informal process and return to the formal process at their election before a final decision is made. In light of the new procedural requirements, schools are expected to develop informal resolution processes to provide a viable option to participants to resolve the matter without going through a time-consuming process. This could likely mean that a person reporting could be pressured into agreeing to an informal process.
The 2020 Rules state an appeal process be available to both parties after the dismissal of a formal complaint or a finding of a policy violation. This appeal process must include the following basis:
Procedural irregularity that affected the outcome of the matter;
Newly discovered evidence that could affect the outcome;
Title IX personnel had a conflict of interest or bias that affected the outcome.
Schools are permitted to include other bases for appeal beyond those outlined above.
11. Deadline for Implementation
The deadline for when these new rules go into effect for all K-12 schools (who receive federal funding) is August 14, 2020, making it very difficult for schools to abide by the rules as they also determine their ongoing response to Covid-19.